EXECUTION
      COPY




$ 35,000,000




REVOLVING
      CREDIT AGREEMENT




by
      and
      among




**JAMES
      RIVER COAL COMPANY** ,


**JAMES
      RIVER COAL SERVICE COMPANY** ,


**LEECO,
      INC** ,


**TRIAD
      MINING, INC.** ,


**TRIAD
      UNDERGROUND MINING, LLC** ,


**BLEDSOE
      COAL CORPORATION** ,


**JOHNS
      CREEK ELKHORN COAL CORPORATION** ,


**BELL
      COUNTY COAL CORPORATION** ,


**JAMES
      RIVER COAL SALES, INC.** ,


**BLEDSOE
      COAL LEASING COMPANY** ,


**BLUE
      DIAMOND COAL COMPANY** ,


and **MCCOY
      ELKHORN COAL CORPORATION** ,


as
      Borrowers,




the
      other
      Credit Parties hereto from time to time,




as
      Guarantors,




the
      LENDERS party hereto from time to time,




and




**GENERAL
      ELECTRIC CAPITAL CORPORATION** ,


as
      Co-Lead Arranger, Administrative Agent and Collateral Agent





with




**MORGAN
      STANLEY SENIOR FUNDING, INC.**


having
      acted as Co-Lead Arranger.




Dated
      as
      of February 26, 2007









TABLE
      OF
      CONTENTS




**Page**ARTICLE
                  IDEFINITIONS; CERTAIN TERMS
              1SECTION
                  1.01
              Definitions.
                  As used in this Agreement, the following terms shall have the respective
                  meanings indicated below, such meanings to be applicable equally
                  to both
                  the singular and plural forms of such terms:
              1SECTION
                  1.02
              Terms
                  Generally.
                  The definitions of terms herein shall apply equally to the singular
                  and
                  plural forms of the terms defined. Whenever the context may require,
                  any
                  pronoun shall include the corresponding masculine, feminine and
                  neuter
                  forms. The words “include”, “includes” and “including” shall be deemed to
                  be followed by the phrase “without limitation”. The word “will” shall be
                  construed to have the same meaning and effect as the word “shall”. Unless
                  the context requires otherwise, (a) any definition of or reference to
                  any agreement, instrument or other document herein shall be construed
                  as
                  referring to such agreement, instrument or other document as from
                  time to
                  time amended, supplemented or otherwise modified (subject to any
                  restrictions on such amendments, supplements or modifications set
                  forth
                  herein), (b) any reference herein to any Person shall be construed to
                  include such Person’s successors and assigns, (c) the words “herein”,
                  “hereof” and “hereunder”, and words of similar import, shall be construed
                  to refer to this Agreement in its entirety and not to any particular
                  provision hereof, and (d) all references herein to Articles,
                  Sections, Exhibits and Schedules shall be construed to refer to
                  Articles
                  and Sections of, and Exhibits and Schedules to, this Agreement,
                  (e) any reference to any law or regulation herein shall, unless
                  otherwise specified, refer to such law or regulation as amended,
                  modified
                  or supplemented from time to time and (f) the words “asset” and
                  “property” shall be construed to have the same meaning and effect and to
                  refer to any and all tangible and intangible assets and properties,
                  including cash, securities, accounts and contract rights.
              35SECTION
                  1.03
              Accounting
                  and Other Terms.
                  Unless otherwise expressly provided herein, each accounting term
                  used
                  herein shall have the meaning given to it under GAAP. All terms
                  used in
                  this Agreement which are defined in Article 8 or Article 9 of
                  the UCC and which are not otherwise defined herein shall have the
                  same
                  meanings herein as set forth therein.
              35
  ii
  SECTION
                  1.04
              Time
                  References.
                  Unless otherwise indicated herein, all references to time of day
                  refer to
                  Eastern standard time or Eastern daylight saving time, as in effect
                  in New
                  York, New York on such day. For purposes of the computation of
                  a period of
                  time from a specified date to a later specified date, the word
“from”
                  means “from and including” and the words “to” and “until” each means “to
                  but excluding”;provided,however,
                  that with respect to a computation of fees or interest payable
                  to the
                  Administrative Agent or the Lenders, such period shall in any event
                  consist of at least one full day.
              36ARTICLE
                  IITHE FACILITY
              36SECTION
                  2.01
              Revolving
                  Advances.
              36SECTION
                  2.02
              Use
                  of Proceeds.
                  Proceeds of the Loans shall be utilized to: (a) refinance certain
                  existing secured indebtedness and replace existing letters of credit
                  on
                  the Closing Date, (b) pay fees and expenses associated with the Loans
                  and (c) provide for working capital and other general corporate
                  purposes. No portion of the Loans may be used to fund voluntary
                  prepayments of the Term Loan Obligations.
              38SECTION
                  2.03
              Protective
                  Advances.
                  The Collateral Agent hereby is authorized by the Borrowers and
                  the
                  Lenders, from time to time in the Collateral Agent’s sole discretion,
                  (a) after the occurrence and during the continuance of a Default or
                  Event of Default, or (b) at any time that any of the other applicable
                  conditions precedent set forth inSECTION
                  5.02are not satisfied, to make loans to the Borrowers (“Protective
                  Advances”)
                  in an aggregate amount not to exceed three million five hundred
                  thousand
                  Dollars ($3,500,000) that the Collateral Agent, in its sole discretion,
                  deems necessary or desirable (i) to preserve or protect the
                  Collateral, or any portion thereof, (ii) to enhance the likelihood of
                  repayment of the Obligations or (iii) to pay any other amount
                  chargeable to the Borrowers pursuant to the terms of this Agreement,
                  including Lender Expenses and the costs, fees and expenses pursuant
                  to
                  this Agreement,providedthatProtective Advances shall not cause the amount of the Loans to
                  exceed the
                  Maximum Revolver Amount. The Collateral Agent shall promptly notify
                  the
                  Administrative Borrower of any Protective Advances made to the
                  Borrowers.
              38
  iii
  SECTION
                  2.04
              Promise
                  to Pay.
                  Each of the Borrowers, jointly and severally, agrees to pay (a) the
                  principal amount of the Loans in full on the Maturity Date or such
                  earlier
                  date as they may become due and payable, whether by operation ofSECTION
                  3.02,
                  by acceleration or otherwise, (b) all fees and other amounts due
                  under the Agents Fee Letter due on the Closing Date and from time
                  to time
                  after the Closing Date when due, (c) all Lender Expenses on demand,
                  (d) all unpaid interest accrued, in accordance with the terms of this
                  Agreement and any applicable Note or such earlier date as such
                  amounts may
                  become due and payable, whether by acceleration or otherwise, (e) all
                  issuance charges and other amounts when due to each L/C Issuer
                  in
                  accordance withAnnex A,
                  this Agreement, and other documentation between a Borrower and
                  each such
                  L/C Issuer, (e) all mandatory prepayments when due under this Agreement,
                  and (f) all other Obligations when due under this
                  Agreement.
              39SECTION
                  2.05
              Notes.
              39SECTION
                  2.06
              Authorized
                  Officers and Administrative Agent.
              40SECTION
                  2.07
              Joint
                  and Several Liability of the Credit Parties.
                  Each Credit Party is and shall be jointly and severally liable
                  for the
                  repayment of, and agrees to pay when due, all Loans, all interest,
                  fees,
                  Lender Expenses and all other Obligations.
              41SECTION
                  2.08
              Loan
                  Account and Accounting.
                  The Administrative Agent shall maintain a loan account (the “Loan
                  Account”)
                  on its books to record: all Revolving Advances and Letter of Credit
                  Usage,
                  all payments made by Borrowers, and all other debits and credits
                  as
                  provided in this Agreement with respect to the Loans or any other
                  Obligations. All entries in the Loan Account shall be made in accordance
                  with the Administrative Agent’s customary accounting practices as in
                  effect from time to time. The balance in the Loan Account, as recorded
                  on
                  the Administrative Agent’s most recent printout or other written
                  statement, shall, absent manifest error, be presumptive evidence
                  of the
                  amounts due and owing to the Administrative Agent and Lenders by
                  each
                  Borrower;providedthatany failure to so record or any error in so recording shall not
                  limit or
                  otherwise affect any Borrower’s duty to pay the Obligations. The
                  Administrative Agent shall render to the Administrative Borrower
                  a monthly
                  accounting of transactions with respect to the Loans setting forth
                  the
                  balance of the Loan Account as to the Borrowers for the immediately
                  preceding month. Unless the Administrative Borrower notifies the
                  Administrative Agent in writing of any objection to any such accounting
                  (specifically describing the basis for such objection), within
                  thirty (30)
                  days after the date thereof, each and every such accounting shall
                  be
                  presumptive evidence of all matters reflected therein. Only those
                  items
                  expressly objected to in such notice shall be deemed to be disputed
                  by
                  Borrowers. Notwithstanding any provision herein contained to the
                  contrary,
                  any Lender may elect (which election may be revoked) to dispense
                  with the
                  issuance of Notes to that Lender and may rely on the Loan Account
                  as
                  evidence of the amount of Obligations from time to time owing to
                  it.
              41
  iv
  SECTION
                  2.09
              Application
                  of Payments and Proceeds.
              41ARTICLE
                  IIIPAYMENTS AND OTHER COMPENSATION
              43SECTION
                  3.01
              Voluntary
                  Prepayments/Reductions of Commitments.
              43SECTION
                  3.02
              Mandatory
                  Prepayments.
              43SECTION
                  3.03
              Payments.
              44SECTION
                  3.04
              Taxes.
              45ARTICLE
                  IV INTEREST
              48SECTION
                  4.01
              Interest
                  on the Loans and Other Obligations.
              48SECTION
                  4.02
              Break
                  Funding Payments.
                  In the event of the payment of any principal of any LIBOR Rate
                  Loan other
                  than on the last day of the LIBOR Period applicable thereto (including
                  as
                  a result of an Event of Default), or the failure to borrow or prepay
                  any
                  Loan on the date specified in any notice delivered pursuant hereto,
                  then,
                  in any such event, the Borrowers shall compensate each applicable
                  Lender
                  for the loss, cost and expense attributable to such event. A certificate
                  of any Lender setting forth any amount or amounts that such Lender
                  is
                  entitled to receive pursuant to this SECTION 4.02 shall be delivered
                  to
                  the Borrowers and shall be conclusive absent manifest error. The
                  Borrowers
                  shall pay such Lender the amount shown as due on any such certificate
                  within ten (10) days after receipt thereof.
              50SECTION
                  4.03
              Change
                  in Law; Illegality.
              50
 v
 SECTION
                  4.04
              Fees.
                  The Borrowers hereby agree to pay to the Administrative Agent,
                  for the
                  account of the Lenders in accordance with their Pro Rata Shares,
                  the
                  following amounts:
              51
 ARTICLE
                  VCONDITIONS TO LOANS
              52SECTION
                  5.01
              Conditions
                  Precedent to the Funding on the Closing Date.
                  The obligation of each Lender to make the Loans requested, and
                  the
                  Obligation of any L/C Issuer to issue Letters of Credit to be made
                  by it
                  on the Closing Date or a Funding Date shall be subject to the
                  satisfaction, or waiver by each of the Agents, of each of the following
                  conditions precedent:
              52SECTION
                  5.02
              Conditions
                  Precedent to Revolving Advances and Issuances of Letters of
                  Credit.
                  The obligation of the Lenders to make any Revolving Advance or
                  the L/C
                  Issuer to issue any Letters of Credit requested to be made by it
                  on any
                  Funding Date, shall be subject to the satisfaction of all of the
                  conditions precedent specified in SECTION 5.01 and the following
                  additional conditions:
              57ARTICLE
                  VIREPRESENTATIONS AND WARRANTIES
              58SECTION
                  6.01
              Representations
                  and Warranties.
                  In order to induce the Lenders to enter into this Agreement and
                  to make
                  the Loans or issue the Letters of Credit, as the case may be, each
                  Credit
                  Party hereby represents and warrants as follows:
              58ARTICLE
                  VIIREPORTING COVENANTS
              68SECTION
                  7.01
              Financial
                  Statements.
                  Each Credit Party (a) shall keep, and cause each of its Subsidiaries
                  to keep, proper books of record and account, in which true and
                  correct
                  entries shall be made of all material financial transactions and
                  the
                  assets and business of the Credit Parties, and (b) shall maintain a
                  system of accounting established and administered in accordance
                  with sound
                  business practices to permit preparation of consolidated financial
                  statements in conformity with GAAP, and each of the financial statements
                  described below shall be prepared from such system and records.
                  The
                  Administrative Borrower shall deliver or cause to be delivered
                  to the
                  Administrative Agent:
              68SECTION
                  7.02
              Other
                  Financial Information.
                  The Administrative Borrower shall deliver to each Agent any Credit
                  Party’s
                  such other information, with respect to (a) the Collateral, or
                  (b) any Credit Party’s business, financial condition, results of
                  operations, properties, projections, business or business prospects
                  as
                  such Agent may, from time to time, reasonably request. The Credit
                  Parties
                  hereby authorize each Agent and its representatives to communicate
                  directly with the certified public accountants for the Borrowers
                  so long
                  as the Agent provides a Senior Officer of such Credit Party the
                  opportunity to participate in such communication and authorizes
                  the
                  accountants to disclose to each Agent, each Lender and their respective
                  representatives any and all financial statements and other financial
                  information, including copies of any final management letter, that
                  such
                  accountants may have with respect to the Collateral or such Credit
                  Party’s
                  financial condition, results of operations, properties, projections,
                  business, and business prospects. The Agents and such representatives
                  shall treat any non-public information so obtained as
                  confidential.
              70
  vi
  SECTION
                  7.03
              Defaults,
                  Events of Default.
                  Promptly upon any Senior Officer obtaining knowledge of any condition
                  or
                  event which constitutes a breach or violation of any of the covenants,
                  representations or conditions of this Agreement, an Event of Default
                  or a
                  Default, each Credit Party shall deliver to the Administrative
                  Agent an
                  Officer’s Certificate specifying (a) the nature and period of
                  existence of any such claimed Event of Default, Default, condition
                  or
                  event, (b) the notice given or action taken by such Person in
                  connection therewith, and (c) what action such Credit Party has
                  taken, is and proposes to take with respect thereto.
              71SECTION
                  7.04
              Lawsuits.
                  (a) Promptly upon any Credit Party obtaining knowledge of the
                  institution of, or written threat of (i) any action, suit, proceeding
                  or arbitration against or affecting such Credit Party or any asset
                  of such
                  Credit Party or not previously disclosed pursuant toSECTION
                  6.01(f),
                  which action, suit, proceeding or arbitration could reasonably
                  be expected
                  to have a Material Adverse Effect, (ii) any investigation or
                  proceeding before or by any Governmental Authority, the effect
                  of which
                  could reasonably be expected to materially limit, prohibit or restrict
                  the
                  manner in which such Credit Party currently conducts its business,
                  (iii) any Forfeiture Proceeding, or (iv) any material
                  Condemnation or Condemnation proceeding, such Credit Party shall
                  give
                  written notice thereof to the Administrative Agent and provide
                  such other
                  information reasonably requested by the Administrative Agent as
                  may be
                  reasonably available to enable the Administrative Agent to evaluate
                  such
                  matters except, in each case, where the same is fully covered by
                  insurance
                  (other than applicable deductible), and (b) in addition to the
                  requirements set forth inclause (a)of
                  thisSECTION
                  7.04,
                  such Credit Party upon request of the Administrative Agent, shall
                  promptly
                  give written notice of the status of any action, suit, proceeding,
                  governmental investigation or arbitration covered by a report delivered
                  pursuant to clause (a)above and provide such other information as may be reasonably requested
                  by
                  the Administrative Agent and reasonably available to such Credit
                  Party to
                  enable the Administrative Agent to evaluate such
                  matters.
              71
  vii
  SECTION
                  7.05
              Insurance.
                  As soon as practicable and in any event within three (3) Business
                  Days of any notice of nonrenewal or cancellation without replacement
                  thereof of any material insurance coverage set forth on the most
                  recent
                  schedule delivered pursuant toSECTION
                  6.01(t),
                  as applicable, the Administrative Borrower shall deliver to the
                  Administrative Agent a copy of any such notice.
              71SECTION
                  7.06
              Environmental
                  Notices.
                  The Administrative Borrower shall, and shall cause the Credit Parties
                  to,
                  notify the Administrative Agent and the Collateral Agent, in writing,
                  promptly, and in any event within five (5) Business Days after such
                  Credit Party’s obtaining knowledge thereof, of any: (a) notice or
                  claim to the effect that such Credit Party is or may be liable
                  to any
                  Person as a result of the Release of any Hazardous Material;
                  (b) investigation by any Governmental Authority of any Credit Party
                  evaluating whether any Remedial Action is needed to respond to
                  the Release
                  of any Hazardous Material; (c) notice that any Property of such
                  Credit Party is subject to an Environmental Lien; (d) any material
                  violation of Environmental Laws by such Credit Party or awareness
                  by such
                  Credit Party of a condition which would reasonably be expected
                  to result
                  in a material violation of any Environmental Law by such Credit
                  Party;
                  (e) commencement or written threat of any judicial or administrative
                  proceeding alleging a violation of or liability under any Environmental
                  Law involving such Credit Party; (f) any proposed acquisition of
                  stock, assets, real estate or leasing of property, or any other
                  action by
                  such Credit Party that would reasonably be expected to subject
                  such Credit
                  Party to material Environmental Liabilities and Costs; or
                  (g) document provided to a Governmental Authority concerning any
                  Release of a Hazardous Material in excess of any reportable quantity
                  from
                  or onto property owned or operated by such Credit Party or any
                  release or
                  event requiring reporting pursuant to any Environmental Law or
                  any
                  material obligation to take any Remedial Action to abate any Release.
                  For
                  purposes ofclauses (a),(b),(c)and(d),
                  notice shall include any other written communications given to
                  an agent or
                  employee of the Credit Party with direct or indirect supervisory
                  responsibility with respect to the activity, if any, which is the
                  subject
                  of such communication. With respect toclauses (a)through(g)above, such notice shall be required only if (i) the liability or
                  potential liability, or with respect toclause (g),
                  the cost or potential cost of compliance, which is the subject
                  matter of
                  the notice is reasonably likely to exceed one hundred thousand
                  Dollars
                  ($100,000), or if (ii) such liability or potential liability or cost
                  of compliance when added to other ongoing or pending liabilities
                  of such
                  Credit Party of the kind covered byclauses (a)through (f) above is reasonably likely to exceed two hundred and
                  fifty
                  thousand Dollars ($250,000). Upon the written request of the
                  Administrative Agent, the Credit Parties shall provide the Administrative
                  Agent with copies of any non-privileged documents related to any
                  matter
                  for which notice has been given pursuant to thisSECTION
                  7.06.
              71
  viii
  SECTION
                  7.07
              Labor
                  Matters.
                  The Administrative Borrower shall, and shall cause each Credit
                  Party to,
                  notify the Administrative Agent in writing, promptly, but in any
                  event
                  within three (3) Business Days after learning thereof, of (a) any
                  material labor dispute to which any Credit Party could reasonably
                  be
                  likely to become a party, any actual or threatened strikes, lockouts
                  or
                  other disputes relating to such Credit Party’s plants and other
                  facilities, and (b) any material liability incurred with respect to
                  the closing of any plant or other facility of such Credit
                  Party.
              72SECTION
                  7.08
              Other
                  Information.
                  Promptly upon receiving a request therefor from the Administrative
                  Agent,
                  each Credit Party shall prepare and deliver to the Administrative
                  Agent
                  (a) such other information with respect to such Credit Party’s
                  business, financial condition, results of operations, properties,
                  projections, business or business prospects, (b) such other
                  information with respect to the Collateral, including, without
                  limitation,
                  schedules identifying and describing the Collateral and any Dispositions
                  thereof or (c) such other information with respect to such Credit
                  Party, as from time to time may be reasonably requested by the
                  Administrative Agent.
              72
  ix
  ARTICLE
                  VIIIAFFIRMATIVE COVENANTS
              72SECTION
                  8.01
              Compliance
                  with Laws and Contractual Obligations.
                  Each Credit Party shall comply with all Requirements of Law (including
                  with respect to the licenses, approvals, certificates, permits,
                  franchises, notices, registrations and other governmental authorizations
                  necessary to the ownership of its respective properties or to the
                  conduct
                  of its respective business, antitrust laws or Environmental Laws
                  and laws
                  with respect to social security and pension funds obligations)
                  except
                  where the failure to do so, individually or in the aggregate, could
                  not
                  reasonably be expected to result in a Material Adverse Effect.
                  Each Credit
                  Party shall comply with all obligations under Material Contracts,
                  including the Indenture. In addition the Credit Parties are in
                  compliance
                  with all other contractual obligations binding upon them, except
                  to the
                  extent that any such failure to be in compliance could not reasonably
                  be
                  expected individually or in the aggregate to result in a Material
                  Adverse
                  Effect. Each Credit Party shall have policies in place to observe
                  the
                  applicable requirements of the Patriot Act related requirements
                  consistent
                  with U.S. industry practice.
              72SECTION
                  8.02
              Payment
                  of Taxes and Claims.
                  Each Credit Party shall pay (a) all taxes, assessments and other
                  governmental charges imposed upon it or on any of its properties
                  or assets
                  or in respect of any of its franchises, business, income or property,
                  and
                  (b) all claims (including claims for labor, services, materials and
                  supplies) for sums material in the aggregate to such Credit Party
                  which
                  have become due and payable and which by law have or may become
                  a Lien
                  upon any of such Credit Party’s properties or assets, in each case prior
                  to the time when any penalty or fine will be incurred by the Credit
                  Party
                  with respect thereto, except for such taxes, assessments, other
                  governmental charges and claims that are being contested in a Permitted
                  Protest to the extent that the failure to do so could not,
                  individually or in the aggregate, reasonably be expected to result
                  in a
                  Material Adverse Effect.
              73SECTION
                  8.03
              Conduct
                  of Business and Preservation of CorporateExistence. Each Credit Party shall (a) continue to engage in
                  business of the same general type as now conducted by the Credit
                  Parties,
                  taken as a whole, and (b) preserve and maintain its corporate
                  existence, rights (charter and statutory), licenses, consents,
                  permits, notices or approvals and franchises deemed material to its
                  business; provided that no Credit Party shall be required to preserve
                  any
                  right or franchise if (i) the Credit Party shall determine in good
                  faith that the preservation thereof is no longer necessary, and
                  (ii) that the loss thereof could not reasonably be expected to have
                  a
                  Material Adverse Effect.
              73
  x
  SECTION
                  8.04
              Inspection
                  of Property; Books and Records; Discussions.
              73SECTION
                  8.05
              Maintenance
                  of Properties.
                  Each Credit Party shall, maintain, preserve and protect consistent
                  with
                  past practice all of their tangible properties and Intellectual
                  Property
                  and other intangible assets which are material to the conduct of
                  their
                  business in good working order and condition, ordinary wear and
                  tear
                  excepted, except where the failure to do so could not reasonably
                  be
                  expected to have a Material Adverse Effect, and comply with the
                  provisions
                  of all Material Contracts (including material Mining Leases) to
                  which each
                  of them is a party so as to prevent any material loss or forfeiture
                  thereof or thereunder. Further, each Credit Party shall maintain
                  all other
                  contractual obligations binding upon it, except to the extent that
                  any
                  such failure to do so could not reasonably be expected, individually
                  or in
                  the aggregate, to result in a Material Adverse Effect. Each Credit
                  Party
                  shall (a) maintain such Credit Party’s rights in all Intellectual Property
                  material to the conduct of its business, including all Registered
                  Intellectual Property and all Trade Secrets owned or licensed by
                  such
                  Credit Party (b) take all commercially reasonable steps to preserve
                  and
                  protect such Intellectual Property, including maintaining the quality
                  of
                  any and all products or services used or provided in connection
                  with any
                  material Trademark, at least at the level of quality of the products
                  and
                  services as of the Closing Date, and (c) take all commercially
                  reasonable
                  steps to ensure that all licensed users of any such Intellectual
                  Property
                  use such substantially consistent standards of quality.
              74SECTION
                  8.06
              Transactions
                  with Related Parties.
                  Each Credit Party shall conduct all transactions otherwise permitted
                  under
                  this Agreement with any of its Related Parties on terms that are
                  commercially reasonable and no less favorable to such Credit Party
                  than
                  such Credit Party would obtain in a comparable arm’s-length transaction
                  with a Person not a Related Party.
              74
  xi
  SECTION
                  8.07
              Further
                  Assurances.
                  Each Credit Party shall take such action and execute, acknowledge
                  and
                  deliver, at its sole cost and expense, such agreements, instruments
                  or
                  other documents as the Collateral Agent may reasonably require
                  from time
                  to time in order (a) to carry out more effectively the purposes of
                  this Agreement and the other Loan Documents, (b) to obtain, maintain,
                  continue, validate or perfect its first-priority Liens on any of
                  the
                  Collateral or any other property of the Credit Parties, (c) to
                  establish and maintain the validity and effectiveness of any of
                  the Loan
                  Documents and the validity, perfection and priority of the Liens
                  intended
                  to be created thereby, and (d) to better assure, convey, grant,
                  assign, transfer and confirm unto the Collateral Agent for the
                  ratable
                  benefit of the Lenders the rights now or hereafter intended to
                  be granted
                  to the Collateral Agent for the ratable benefit of the Lenders
                  under this
                  Agreement or any other Loan Document.
              75SECTION
                  8.08
              Additional
                  Security; Additional Guaranties; Further Assurances.
              75SECTION
                  8.09
              Powers;
                  Conduct of Business.
                  Each Credit Party shall qualify and remain qualified to do business
                  in
                  each jurisdiction in which the nature of its business requires
                  it to be so
                  qualified except for those jurisdictions where failure to so qualify
                  does
                  not have or could not reasonably be expected to have a Material
                  Adverse
                  Effect.
              77SECTION
                  8.10
              Use
                  of Proceeds.
                  Proceeds of the Loans shall be used solely in accordance withSECTION
                  2.02hereof.
              77SECTION
                  8.11
              Obtaining
                  of Permits, Etc.Each Credit Party shall obtain, maintain and preserve all Permits
                  which
                  are necessary or useful in the proper conduct of its business,
                  except
                  where the failure to maintain and preserve such permits, licenses,
                  authorizations, approvals, entitlements and accreditations does
                  not or
                  could not reasonably be expected to have a Material Adverse
                  Effect.
              77SECTION
                  8.12
              Environmental.
                  Each Credit Party shall, (a) comply, and cause its Subsidiaries to
                  comply, in all material respects with Environmental Laws and provide
                  to
                  the Collateral Agent documentation of such compliance which Collateral
                  Agent reasonably requests, which documentation shall include a
                  notice by
                  the Administrative Borrower six (6) months after the Closing Date
                  of the
                  steps taken by the Credit Parties to address any outstanding matters
                  described onSchedule
                  6.01(p),
                  (b) promptly provide the Collateral Agent a copy of any document
                  provided to a Governmental Authority concerning any Release of
                  a Hazardous
                  Material from or onto property owned or operated by the Credit
                  Parties and
                  take any Remedial Actions required of the Credit Parties by Environmental
                  Laws or otherwise appropriate to abate said Release or avoid Environmental
                  Liabilities and Costs, and (c) perform any Remedial Action at
                  property owned or operated by the Credit Parties (i) that is required
                  of the Credit Parties pursuant to any Environmental Law or agreement
                  with
                  a Governmental Authority, or (ii) that was initiated prior to the
                  Closing Date and is identified on Schedule 6.01(p).
              78
  xii
  SECTION
                  8.13
              Mining.
                  The Credit Parties will, (a) take all commercially reasonable efforts
                  to
                  ensure that all of their respective tenants, subtenants, contractors,
                  subcontractors, and invitees comply with all applicable Mining
                  Laws, and
                  obtain, comply and maintain any and all Mining Permits, applicable
                  to any
                  of them, and (b) conduct and complete all material investigations,
                  studies, sampling and testing, and all remedial, removal and other
                  actions
                  in each case required under applicable Mining Laws and promptly
                  comply in
                  all respects with all lawful orders and directives of any Governmental
                  Authority in respect of applicable Mining Laws.
              78SECTION
                  8.14
              Maintenance
                  of Insurance.
                  Each Credit Party shall maintain (in the name of such Credit Party),
                  insurance with financially sound and reputable insurance companies
                  or
                  associations (including, without limitation, commercial general
                  liability,
                  property and business interruption insurance) with respect to their
                  Properties (including all Real Estate Assets leased or owned by
                  them) and
                  business, in such amounts and covering such risks as is required
                  by any
                  Governmental Authority having jurisdiction with respect thereto
                  or as is
                  carried generally in accordance with sound business practice by
                  companies
                  in similar businesses similarly situated. All such property and
                  casualty
                  policies shall name the Collateral Agent as loss payee, and all
                  policies
                  of liability insurance shall name the Collateral Agent an additional
                  insured. All certificates of insurance are to be delivered to the
                  Collateral Agent and the policies shall contain a loss payable
                  and
                  additional insured endorsements in favor of the Collateral Agent
                  (substantially in the form reasonably requested by the Collateral
                  Agent),
                  and shall provide for not less than thirty (30) days’ prior written
                  notice to the Collateral Agent and other named insureds of the
                  exercise of
                  any right of cancellation.
              78
  xiii
  SECTION
                  8.15
              Condemnation.
                  Immediately upon learning of the institution of any Condemnation
                  of any of
                  its material owned or leased real property, any Credit Party shall
                  notify
                  each of the Agents of the pendency of such proceeding.
              78SECTION
                  8.16
              Fiscal
                  Year.
                  Each Credit Party shall cause its Fiscal Year to end on December
                  31 of
                  each year unless the Required Lenders consent to a change in such
                  Fiscal
                  Year (and appropriate related changes to this Agreement).
              78SECTION
                  8.17
              Payment
                  of Contractual Obligations.
                  Each Credit Party shall pay on a timely basis any and all premiums,
                  cash
                  reserves, claims or other payment obligations in respect of any
                  material
                  insurance policy or any insurance covering the Collateral, and
                  pay on a
                  timely basis any and all amounts due and payable, and perform all
                  of its
                  obligations, under all Material Contracts.
              79SECTION
                  8.18
              Change
                  in Collateral; Collateral Records.
                  Each Credit Party shall advise the Collateral Agent promptly, in
                  sufficient detail, of any change which could reasonably be expected
                  to
                  have a Material Adverse Effect relating to the value of the Collateral
                  or
                  the Lien granted thereon and execute and, upon the Collateral Agent’s
                  reasonable request, deliver, and cause each of its Subsidiaries
                  to execute
                  and deliver, to the Collateral Agent from time to time, solely
                  for the
                  Collateral Agent’s convenience in maintaining a record of Collateral, such
                  written statements and schedules, maintained by the Borrowers and
                  their
                  Subsidiaries in the ordinary course of business, as the Collateral
                  Agent
                  may reasonably require, designating, identifying or describing
                  the
                  Collateral.
              79SECTION
                  8.19
              Cash
                  Management.
                  (a) No Credit Party shall have any Deposit Account or Securities
                  Account
                  other than accounts maintained in accordance with SECTION 9.15
                  hereof and
                  the Administrative Borrower shall cause the Lenders to have a valid,
                  perfected, first-priority security interest in such accounts except
                  as
                  otherwise specified inSECTION
                  9.15.
              79SECTION
                  8.20
              Location
                  of Equipment.
                  Each Credit Party will keep its Equipment only at any of the locations
                  identified onSchedule 6.01(aa)(2)or
                  in transit from one such location to another;provided,however,
                  that the Administrative Borrower may amendSchedule 6.01(aa)so
                  long as such amendment occurs by written notice to the Collateral
                  Agent
                  not less than thirty (30) days prior to the date on which the list of
                  locations has changed and such Equipment is moved to such new location
                  in
                  the United States.
              79
  xiv
  SECTION
                  8.21
              Post-Closing
                  Matters.
                  Each Credit Party shall satisfy each condition and complete each
                  item set
                  forth onSchedule 8.21attached hereto on or before the time specified onSchedule 8.21with respect to such condition or item.
              79SECTION
                  8.22
              Inventory.
                  Each Credit Party shall maintain its Inventory only (a) at locations
                  that are (i) owned or leased by the Credit Parties, or
                  (ii) subject to a Collateral Access Agreement or will be within sixty
                  (60) days from the Closing Date, or (b) in transit from one such
                  location to another.
              79SECTION
                  8.23
              Pledged
                  Security Interests.
                  The Credit Parties shall deliver, within three (3) Business Days
                  following
                  the Closing Date, all of the certificated pledged Securities then
                  owned by
                  the Borrowers, together with (i) executed and undated transfer powers
                  in the case of certificated pledged Securities, and (ii) all other
                  items required to be delivered pursuant to the Security
                  Agreement.
              80ARTICLE
                  IXNEGATIVE COVENANTS
              80SECTION
                  9.01
              Liens.
                  It shall not create, incur, assume or suffer to exist any Lien upon
                  or with respect to any of its property or assets, whether now owned
                  or
                  hereafter acquired, or assign or otherwise transfer any account
                  receivable
                  or other right to receive income, other than Permitted
                  Encumbrances.
              80SECTION
                  9.02
              Indebtedness;
                  Voluntary Prepayments.
                  It shall not create, incur, assume, guarantee or suffer to exist,
                  or
                  otherwise become or remain liable with respect to any Indebtedness,
                  other
                  than Permitted Indebtedness. The Credit Parties shall not
                  (i) voluntarily prepay the principal of the Term Loan B Obligations
                  or reduce the Term Letter of Credit Commitment (each as defined
                  in the
                  Term Credit Agreement dated as of the date hereof) unless on a
                  pro forma
                  basis after giving effect to such prepayment the Credit Parties
                  shall have
                  Availability in excess of twenty million Dollars ($20,000,000);
                  or
                  (ii) voluntarily prepay the principal of the Senior Notes (except
                  pursuant to a Permitted Refinancing).
              80SECTION
                  9.03
              Consolidation,
                Merger, Subsidiaries, Etc.It
                shall not (a) liquidate or dissolve, consolidate with, or merge into
                or with, any other corporation,providedthatthis clause (a)shall not prevent (i) a merger or consolidation involving only a
                Borrower and one or more of its Subsidiaries pursuant to which a
                Borrower
                is the surviving party, (ii) a merger or consolidation involving only
                one or more Wholly-Owned Domestic Subsidiaries of a Borrower pursuant
                to
                which the surviving Person is a Wholly-Owned Domestic Subsidiary
                of a
                Borrower that is a Credit Party, (iii) a merger or consolidation that
                has the effect of a disposition of assets permitted bySECTION
                9.04or
                an Investment permitted bySECTION
                9.07,
                or (iv) purchase or otherwise acquire all or substantially all of the
                capital stock or assets of any Person (or of any division or business
                unit
                thereof).
              80
  xv
  SECTION
                  9.04
              Asset
                  Dispositions, Etc.It
                  shall not sell, transfer, lease or otherwise dispose of, or grant
                  options,
                  warrants or other rights with respect to, any of its assets (including
                  any
                  capital stock or Indebtedness of any Person), (each an “Asset
                  Disposition”)
                  except:
              80SECTION
                  9.05
              Limitation
                  on Issuance of Equity Interests.
                  It shall not issue or sell or enter into any agreement or arrangement
                  for
                  the issuance and sale of any shares of its capital stock or of
                  any other
                  Equity Interests, any Securities convertible into or exchangeable
                  for its
                  capital stock or other Equity Interests or any warrants, options
                  or other
                  rights for the purchase or acquisition of any of its capital stock
                  or
                  Equity Interests, other than (a) as set forth onSchedule
                  6.01(e),
                  (b) the issuance of capital stock to a Borrower or Wholly-Owned
                  Subsidiaries of such Borrower, (c) the issuance of capital stock
                  of
                  directors’ qualifying shares; or (d) issuances to employees pursuant to
                  existing employee stock option plan as set forth onSchedule 6.01(e).
              81SECTION
                  9.06
              Limitations
                on
                Dividends and Distributions and Other Payment Restrictions Affecting
                Subsidiaries.
                It shall not create or otherwise cause, incur, assume, suffer or
                permit to
                exist or become effective any consensual encumbrance or restriction
                of any
                kind on its ability to, (a) pay dividends or to make any other
                distribution on any shares of its Equity Interests, (b) subordinate
                or to pay, prepay, redeem or repurchase any Indebtedness owed to
                any
                Credit Party, (c) make loans or advances to any Credit Party, or
                (d)
                transfer any of its property or assets to any Credit Party;provided,however,
                that nothing inclauses
                (a)through(d)of
                thisSECTION
                9.06shall prohibit or restrict: (i) this Agreement and the other Loan
                Documents; (ii) any Applicable Law, rule or regulation
                (including applicable currency control laws and applicable state
                or
                provincial corporate statutes restricting the payment of dividends
                or any
                other distributions in certain circumstances); (iii) any restriction
                set
                forth in any document or agreement governing or securing any Existing
                Debt; (iv) in the case ofclause
                (d)any restrictions on the subletting, assignment or transfer of any
                property
                or asset included in a lease, license, sale conveyance or similar
                agreement with respect to such property or asset; (v) in the case
                ofclause
                (d)any holder of a Permitted Encumbrance from restricting on customary
                terms
                the transfer of any property or assets subject to such Permitted
                Encumbrance; (vi) customary provisions restricting assignment of
                any
                licensing agreement or other contract entered into by the Credit
                Parties
                in the ordinary course of business; (vii) restrictions on the transfer
                of
                any asset pending the close of the sale of such asset; or (viii)
                customary
                provisions requiring payment on a pro rata basis of dividends or
                other
                distributions by any non-Wholly-Owned Subsidiary that is not a Credit
                Party set forth in the organizational documents for such Subsidiary
                so
                long as such provisions were not entered into in connection with
                any other
                agreement or arrangement not otherwise permitted under thisSECTION
                9.06.
              82
  xvi
  SECTION
                  9.07
              Investments.
                  It shall not directly or indirectly, hold, own or invest in or
                  commit or
                  agree to hold or invest in, or purchase or otherwise acquire or
                  commit or
                  agree to purchase or otherwise acquire any Investment, except for
                  Permitted Investments and Permitted Acquisitions.
              82SECTION
                  9.08
              Sale
                  and Leaseback.
                  It shall not directly or indirectly, become or remain liable as
                  lessee or
                  as a guarantor or other surety with respect to any lease, whether
                  an
                  Operating Lease or a Capitalized Lease, of any property (whether
                  real,
                  personal or mixed), whether now owned or hereafter acquired, (i) that
                  a Credit Party has sold or transferred or is to sell or transfer
                  to any
                  other Person, or (ii) that a Credit Party intends to use for
                  substantially the same purpose as any other property that has been
                  or is
                  to be sold or transferred by such Credit Party or any other Credit
                  Party
                  to any Person in connection with such lease (a “Sale and Leaseback”) in
                  excess of $10,000,000 individually and in the aggregate for all
                  such Sale
                  and Leaseback transactions during the term of this
                  Agreement.
              82
  xvii
  SECTION
                  9.09
              Negative
                  Pledges.
                  It shall not enter into any agreement prohibiting the creation
                  or
                  assumption of any Lien upon any of its properties or assets, whether
                  now
                  owned or hereafter acquired, except (a) pursuant to this Agreement
                  and the
                  Security Documents, (b) pursuant to any document or instrument
                  governing
                  Existing Debt (including the Indenture and Term Credit Agreement)
                  or
                  governing Capitalized Leases or purchase money debt incurred pursuant
                  toSECTION
                  9.02or
                  any such restriction contained therein relates only to the asset
                  or assets
                  acquired in connection therewith or in connection with any Lien
                  permitted
                  bySECTION
                  9.01or
                  any Disposition permitted bySECTION
                  9.04,
                  (c) prohibitions or conditions under Applicable Law, rule or regulation,
                  (d) any agreement or instrument to which any Person is a party
                  existing on the date such Person first becomes a Subsidiary of
                  a Credit
                  Party or the date such agreement or instrument is otherwise assumed
                  by a
                  Credit Party (so long as such agreement or instrument was not entered
                  into
                  solely in contemplation of such Person becoming a Subsidiary of
                  a Credit
                  Party or such assumption and such prohibitions or conditions do
                  not affect
                  any other Subsidiary of the Credit Party (other than Subsidiaries
                  of such
                  Person having primary obligation for repayment of such Indebtedness)),
                  (e) customary provisions restricting subletting or assignment of any
                  lease governing any leasehold interest of a Credit Party, and (f)
                  customary provisions restricting assignment of any licensing agreement
                  or
                  other contract entered into by a Credit Party in the ordinary course
                  of
                  business; or restrictions on the transfer of any asset pending
                  the close
                  of the sale of such asset.
              83SECTION
                  9.10
              Change
                  in Nature of Business.
                  Except as expressly permitted hereunder, it shall not make any
                  material
                  change in the nature of its business as such business is carried
                  on as of
                  the Closing Date or any business substantially related or incidental
                  thereto. It shall not modify or change its fiscal year or materially
                  modify or change its method of accounting (other than as may be
                  required
                  to conform to GAAP or, with respect to Subsidiaries, to conform
                  to the
                  Administrative Borrower’s Fiscal Year) or enter into, modify, or terminate
                  any agreement currently existing or at any time hereafter entered
                  into
                  with any third-party accounting firm or service bureau for the
                  preparation
                  or storage of the Credit Parties’ accounting records in a manner that
                  would result in said accounting firm or service bureau declining
                  to
                  provide the Agents with information regarding the Credit Parties’
                  financial condition.
              83
  xviii
  SECTION
                  9.11
              Change
                  Name.
                  It shall not change a Credit Party’s name, organizational identification
                  number, state of organization, or organizational identity;provided,however,
                  that a Credit Party or a Subsidiary of a Credit Party may change
                  its name
                  or state of organization upon at least thirty (30) days’ prior
                  written notice by the Administrative Borrower to the Administrative
                  Agent
                  and the Collateral Agent of such change and so long as, at the
                  time of
                  such written notification, such Credit Party or such Subsidiary
                  provides
                  any financing statements, fixture filings or other documents necessary
                  to
                  perfect and continue perfected Liens.
              83SECTION
                  9.12
              Modifications
                  of Indebtedness, Organizational Documents and Certain Other
                  Agreements.
                  It shall not amend, modify or otherwise change, (a) its certificate
                  of incorporation or bylaws (or other similar organizational documents),
                  including by the filing or modification of any certificate of designation,
                  or any agreement or arrangement entered into by it, with respect
                  to any of
                  its capital stock (including any shareholders’ agreement) except any such
                  amendments, modifications or changes pursuant to this clause that
                  either
                  individually or in the aggregate would not be materially adverse
                  to the
                  interests of the Lenders, (b) its accounting policies or reporting
                  practices, (c) the Indenture, or (d) the Term Credit Agreement
                  in a manner prohibited by the Intercreditor Agreement.
              83SECTION
                  9.13
              Federal
                  Reserve Regulations.
                  It shall not use any Loan or the proceeds of any Loan for any purpose
                  that
                  would cause such Loan to be a margin loan under the provisions
                  of
                  Regulation T, U or X.
              84SECTION
                  9.14
              Investment
                  Company Act of 1940.
                  It shall not engage in any business, enter into any transaction
                  or take
                  any other action that would cause it or any of its Subsidiaries
                  to become
                  subject to the registration requirements of the Investment Company
                  Act of
                  1940, as amended, by virtue of being an “investment company” or a company
                  “controlled” by an “investment company” not entitled to an exemption
                  within the meaning of such Act.
              84
  xix
  SECTION
                  9.15
              Securities
                  Accounts; Deposit Accounts.
                  Subject to the Security Agreement and except as permitted bySECTION
                  5.01(v),
                  it shall not establish or maintain any Securities Account, Deposit
                  Account
                  or similar account unless the Collateral Agent shall have received
                  a
                  Control Agreement in respect of such Securities Account, Deposit
                  Account
                  or similar account;providedthat,
                  this requirement shall not apply to any Deposit Account that is
                  a
                  disbursement account and either (A) does not have average daily
                  balances
                  in excess of $100,000 for each such account or (B) is an account
                  for
                  payment of workers compensation and employment claims, so long
                  as the
                  aggregate amount of such excluded Deposit Accounts does not exceed
                  $1,000,000 in the aggregate for all such accounts. Each Credit
                  Party shall
                  comply in all material respects with the provisions of each Control
                  Agreement to which it is a party.
              84SECTION
                  9.16
              Impairment
                  of Security Interests.
                  Except as otherwise permitted pursuant to any of the Loan Documents,
                  it
                  shall not directly or indirectly, take any action or do anything
                  that
                  would have the effect of terminating, limiting in or impairing
                  the
                  perfection or priority of any Lien securing the Obligations except
                  as
                  expressly permitted under any Loan Document.
              84SECTION
                  9.17
              Restricted
                  Payments.
                  It shall not make any Restricted Payment, except (a) intercompany
                  loans and advances between Credit Parties to the extent permitted
                  bySECTION
                  9.07,
                  (b) dividends and distributions by a Credit Party to the Credit Party
                  that holds of the Stock of such Credit Party, (c) employee loans
                  permitted underSECTION
                  9.02,
                  and (d) payments of principal and interest of intercompany notes
                  issued in accordance withSECTION
                  9.02.
              84ARTICLE
                  XFINANCIAL COVENANTS
              84SECTION
                  10.01
              Minimum
                  Consolidated EBITDA.
                  The Credit Parties shall not permit Consolidated EBITDA
              84SECTION
                  10.02
              Leverage
                  Ratio.
                  The Credit Parties shall not permit the Leverage Ratio for the
                  Credit
                  Parties as of any date set forth in the table below to be greater
                  than the
                  amount set forth opposite such date:
              85SECTION
                  10.03
              Capital
                  Expenditures.
                  The Credit Parties will not make or agree to make any Capital Expenditure
                  that would cause the aggregate amount of all such Capital Expenditures
                  made by the Credit Parties in the aggregate to exceed (a) $56.1
                  million in the Fiscal Year ending on or before December 31, 2007 and
                  (b) $70.4 million in the Fiscal Year ending on or before
                  December 31, 2008 and (c) $66.0 million in any Fiscal Year
                  thereafter; provided,however,
                  to the extent that actual Capital Expenditures for any Fiscal Year
                  are
                  less than the maximum amount set forth above for such Fiscal Year,
                  such
                  unused amount may be carried forward and used only in the next
                  Fiscal Year
                  (where it shall be deemed to be spent last).
              86
  xx
  ARTICLE
                  XIEVENTS OF DEFAULT, RIGHTS AND REMEDIES
              86SECTION
                  11.01
              Events
                  of Default.
                  Each of the following occurrences shall constitute an event of
                  default (an
                  “Event
                  of Default”)
                  under this Agreement.
              86SECTION
                  11.02
              Remedies.
                  If any Event of Default specified inSECTION
                  11.01shall have occurred and be continuing, the Administrative Agent
                  may, and
                  upon the written request of Required Lenders shall, by written
                  notice to
                  the Administrative Borrower, take any or all of the following actions,
                  without prejudice to the rights of any Agent or any Lender to enforce
                  its
                  claims against any Credit Party: (i) terminate or reduce the
                  Commitments, whereupon the Commitments shall immediately be terminated
                  or
                  reduced, (ii) declare all or a portion of the Loans then outstanding
                  to be due and payable, whereupon all or such portion of the aggregate
                  principal of such Loans, all accrued and unpaid interest thereon,
                  all fees
                  and all other amounts payable under this Agreement and all other
                  Obligations shall become immediately due and payable, without presentment,
                  demand, protest or further notice of any kind, all of which are
                  hereby
                  expressly waived by the Borrower, and (iii) exercise any and all of
                  its other rights and remedies hereunder, under the other Loan Documents,
                  under Applicable Law and otherwise;provided,however,
                  that upon the occurrence of any Event of Default described inSECTION 11.01(e)orSECTION
                  11.01(f),
                  the Commitments and shall automatically terminate and the Loans
                  then
                  outstanding, together with all accrued and unpaid interest thereon,
                  all
                  fees, all other amounts due under this Agreement or any other Loan
                  Document and all other Obligations shall become immediately due
                  and
                  payable automatically, without presentment, demand, protest or
                  notice of
                  any kind, all of which are expressly waived by the Credit Parties,
                  andprovidedfurtherthatthe
                  Collateral Agent shall pay and apply the proceeds of any sale or
                  other
                  disposition of the Collateral, or any part thereof, resulting from
                  the
                  exercise of the remedies as provided for in this SECTION
                  11.02in
                  accordance withSECTION
                  2.09.
              89
  xxi
  SECTION
                  11.03
              Waivers
                  by the Credit Parties.
                  Except as otherwise provided for in this Agreement and Applicable
                  Law, the
                  Credit Parties waive (i) presentment, demand, protest, notice of
                  presentment or dishonor, notice of intent to accelerate and notice
                  of
                  acceleration, (ii) all rights to notice and a hearing prior to the
                  Lenders taking possession or control of, or to the Lenders’ replevin,
                  attachment or levy upon, any collateral securing the Obligations
                  or any
                  bond or security which might be required by any court prior to
                  allowing
                  such Lenders to exercise any of their remedies, (iii) the benefit of
                  all valuation, appraisal and exemption laws, and (iv) all rights of
                  set-off against any Lender as it applies to the payment of the
                  Obligations. The Credit Parties acknowledge that they have been
                  advised by
                  counsel of their choice with respect to this Agreement, the other
                  Loan
                  Documents and the transactions evidenced by this Agreement and
                  the other
                  Loan Documents.
              89ARTICLE
                  XIIGUARANTY OF OBLIGATIONS OF BORROWER
              90SECTION
                  12.01
              Guaranty.
                  In order to induce the Agents and the Lenders to enter into this
                  Agreement
                  and to make available the Loans hereunder, and in recognition of
                  the
                  direct benefits to be received by each Guarantor from the proceeds
                  of the
                  Loans, each Guarantor hereby agrees with the Administrative Agent
                  and the
                  Collateral Agent, for the benefit of the Lenders, as follows: each
                  Guarantor hereby jointly, severally, unconditionally and irrevocably
                  guarantees, as primary obligor and not merely as surety, the full
                  and
                  prompt payment when due, whether upon maturity, acceleration or
                  otherwise,
                  and the performance, of any and all of the Obligations of all other
                  Credit
                  Parties (such Obligations, collectively, the “Guaranteed
                  Obligations”).
                  If any or all of the Obligations becomes due and payable hereunder,
                  each
                  Guarantor irrevocably and unconditionally promises to pay such
                  Indebtedness to the Collateral Agent, for the benefit of the
                  Lenders.
              90SECTION
                  12.02
              Nature
                  of Liability.
                  The Guarantors agree that this Guaranty is a guaranty of payment
                  and
                  performance and not of collection, and that their obligations under
                  this
                  Guaranty shall be primary, absolute and unconditional, irrespective
                  of,
                  and the liability of each Guarantor shall not be affected by, nor
                  shall
                  this Guaranty be discharged or reduced by reason of:
              90
  xxii
  SECTION
                  12.03
              Independent
                  Obligation.
              91SECTION
                  12.04
              Demand
                  by the Administrative Agent or the Lenders.
                  In addition to the terms of the Guaranty set forth inSECTION
                  12.01,
                  and in no manner imposing any limitation on such terms, it is expressly
                  understood and agreed that, if, at any time, the outstanding principal
                  amount of the Guaranteed Obligations under this Agreement (including
                  all
                  accrued interest thereon) is declared to be immediately due and
                  payable,
                  then the Guarantors shall, without demand, pay to the holders of
                  the
                  Guaranteed Obligations the entire outstanding Guaranteed Obligations
                  due
                  and owing to such holders. Payment by the Guarantors shall be made
                  to the
                  Administrative Agent in immediately available funds to an account
                  designated by the Administrative Agent, as the case may be, or
                  at the
                  address set forth herein for the giving of notice to the Administrative
                  Agent or at any other address that may be specified in writing
                  from time
                  to time by the Administrative Agent, and shall be credited and
                  applied to
                  the Guaranteed Obligations.
              91SECTION
                  12.05
              Enforcement
                  of Guaranty.
                  In no event shall the Administrative Agent have any obligation
                  (although
                  it is entitled, at its option) to proceed against the Borrowers
                  or any
                  other Credit Party or any Collateral pledged to secure Guaranteed
                  Obligations before seeking satisfaction from any or all of the
                  Guarantors,
                  and the Administrative Agent may proceed, prior or subsequent to,
                  or
                  simultaneously with, the enforcement of the Administrative Agent’s or the
                  Term Loan Agent’s rights hereunder, to exercise any right or remedy it may
                  have against any Collateral, as a result of any Lien it may have
                  as
                  security for all or any portion of the Guaranteed
                  Obligations.
              92SECTION
                  12.06
              Waiver.
                  In addition to the waivers contained inSECTION
                  11.03,
                  the Guarantors waive, and agree that they shall not at any time
                  insist
                  upon, plead or in any manner claim or take the benefit or advantage
                  of,
                  any appraisal, valuation, stay, extension, marshaling of assets
                  or
                  redemption law, or exemption, whether now or at any time hereafter
                  in
                  force, which may delay, prevent or otherwise affect the performance
                  by the
                  Guarantors of their Guaranteed Obligations under, or the enforcement
                  by
                  the Collateral Agent, the Administrative Agent or the Lenders of,
                  the
                  Guaranty. The Guarantors hereby waive diligence, presentment and
                  demand
                  (whether for non-payment or protest or of acceptance, maturity,
                  extension
                  of time, change in nature or form of the Guaranteed Obligations,
                  acceptance of further Collateral, release of further Collateral,
                  composition or agreement arrived at as to the amount of, or the
                  terms of,
                  the Guaranteed Obligations, notice of adverse change in the Borrower’s
                  financial condition or any other fact which might increase the
                  risk to the
                  Guarantors) with respect to any of the Guaranteed Obligations or
                  all other
                  demands whatsoever and waive the benefit of all provisions of law
                  which
                  are or might be in conflict with the terms of the Guaranty. The
                  Guarantors
                  represent, warrant and jointly and severally agree that, as of
                  the date of
                  this Agreement, their obligations under the Guaranty are not subject
                  to
                  any offsets or defenses against the Administrative Agent or the
                  Lenders or
                  any Credit Party of any kind. The Guarantors further jointly and
                  severally
                  agree that their obligations under this Guaranty shall not be subject
                  to
                  any counterclaims, offsets or defenses against the Collateral Agent,
                  the
                  Administrative Agent or any Secured Creditor or against any Credit
                  Party
                  of any kind which may arise in the future.
              92
  xxiii
  SECTION
                  12.07
              Benefit
                  of Guaranty.
                  The provisions of the Guaranty are for the benefit of the Agents
                  and the
                  Lenders and their respective permitted successors, permitted transferees,
                  endorsees and assigns, and nothing herein contained shall impair,
                  as
                  between any Credit Party and the Agents or the Lenders, the obligations
                  of
                  any Credit Party under the Loan Documents. In the event all or
                  any part of
                  the Guaranteed Obligations are transferred, endorsed or assigned
                  by the
                  Agents or any Lender to any Person or Persons in a manner permitted
                  by
                  this Agreement, any reference to “the Agents” or “the Lender” herein shall
                  be deemed to refer equally to such Person or Persons.
              92SECTION
                  12.08
              Modification
                  of Guaranteed Obligations, Etc.Each Guarantor hereby acknowledges and agrees that the Agents and
                  the
                  Lenders may at any time or from time to time, with or without the
                  consent
                  of, or notice to, the Guarantors (in their capacity as
                  Guarantors):
              93SECTION
                  12.09
              Reinstatement.
              93SECTION
                  12.10
              Waiver
                  of Subrogation, Etc.Notwithstanding anything to the contrary in the Guaranty or in
                  any other
                  Loan Document, each Guarantor hereby:
              94
  xxiv
  SECTION
                  12.11
              Election
                  of Remedies.
                  If any Agent may, under Applicable Law, proceed to realize benefits
                  under
                  any of the Loan Documents giving the Agents and the Lenders a Lien
                  upon
                  any Collateral owned by any Credit Party, either by judicial foreclosure
                  or by non-judicial sale or enforcement, the Collateral Agent may,
                  at its
                  sole option, determine which of such remedies or rights it may
                  pursue
                  without affecting any of such rights and remedies under this Guaranty.
                  If,
                  in the exercise of any of its rights and remedies, the Collateral
                  Agent
                  shall forfeit any of its rights or remedies, including its right
                  to enter
                  a deficiency judgment against any Credit Party, whether because
                  of any
                  Applicable Laws pertaining to “election of remedies” or the like, the
                  Guarantors hereby consent to such action by any Agent and waive
                  any claim
                  based upon such action, even if such action by any Agent shall
                  result in a
                  full or partial loss of any rights of subrogation which the Guarantors
                  might otherwise have had but for such action by any Agent. Any
                  election of
                  remedies that results in the denial or impairment of the right
                  of any
                  Agent to seek a deficiency judgment against any Credit Party shall
                  not
                  impair each Guarantor’s obligation to pay the full amount of the
                  Guaranteed Obligations. In the event any Agent shall bid at any
                  foreclosure or trustee’s sale or at any private sale permitted by law or
                  the Loan Documents, such Agent may bid all or less than the amount
                  of the
                  Guaranteed Obligations and the amount of such bid need not be paid
                  by such
                  Agent but shall be credited against the Guaranteed Obligations.
                  The amount
                  of the successful bid at any such sale shall be conclusively deemed
                  to be
                  the fair market value of the Collateral and the difference between
                  such
                  bid amount and the remaining balance of the Guaranteed Obligations
                  shall
                  be conclusively deemed to be the amount of the Guaranteed Obligations
                  guaranteed under the Guaranty, notwithstanding that any present
                  or future
                  law or court decision or ruling may have the effect of reducing
                  the amount
                  of any deficiency claim to which the Administrative Agent and the
                  Lenders
                  might otherwise be entitled but for such bidding at any such
                  sale.
              95SECTION
                  12.12
              Further
                  Assurances.
                  Each Guarantor agrees, upon the written request of the Administrative
                  Agent, to execute and deliver to the Administrative Agent, from
                  time to
                  time, any additional instruments or documents reasonably considered
                  necessary by the Administrative Agent to cause the Guaranty to
                  be, become
                  or remain valid and effective in accordance with its
                  terms.
              95
  xxv
  SECTION
                  12.13
              Payments
                  Free and Clear of Taxes.
                  Except as set forth below, all payments required to be made by
                  each
                  Guarantor hereunder shall be made to the Administrative Agent and
                  the
                  Lenders free and clear of, and without deduction for, any and all
                  present
                  and future Taxes and other Taxes (but not Excluded Taxes). If any
                  Guarantor shall be required by law to deduct any Taxes from or
                  in respect
                  of any sum payable hereunder, (a) the sum payable shall be increased
                  as much as shall be necessary so that after making all required
                  deductions
                  (including deductions applicable to additional sums payable under
                  thisSECTION
                  12.13)
                  the Administrative Agent or the Lenders, as applicable, receive
                  an amount
                  equal to the sum they would have received had no such deductions
                  been
                  made, (b) such Guarantor shall make such deductions, and
                  (c) such Guarantor shall pay the full amount deducted to the relevant
                  taxing or other authority in accordance with Applicable Law.
                  Notwithstanding the foregoing, no Guarantor should be required
                  to pay any
                  such additional amounts to an Agent or a Lender with respect to
                  any Taxes
                  in respect of which the Borrowers would not be required to pay
                  any
                  additional amounts pursuant toSECTION
                  3.04if
                  such Taxes were withheld or deducted by the Borrowers and the payment
                  had
                  been made by the Borrowers instead of the Guarantor. Within thirty
                  (30)
                  days after the date of any payment of Taxes, each applicable Guarantor
                  shall furnish to the Administrative Agent the original or a certified
                  copy
                  of a receipt evidencing payment thereof. Except as set forth below,
                  each
                  Guarantor shall jointly and severally indemnify and, within ten
                  (10) days
                  of receipt of written demand therefor, pay the Administrative Agent
                  and
                  each Lender for the full amount of Taxes (including any Taxes imposed
                  by
                  any jurisdiction on amounts payable under thisSECTION
                  12.13)
                  paid by the Administrative Agent or such Lender, as appropriate,
                  with
                  respect to any payment by or on account of any obligation of a
                  Guarantor
                  hereunder and any penalties, interest and reasonable out-of-pocket
                  expenses arising therefrom or with respect thereto, whether or
                  not such
                  Taxes were correctly or legally asserted. Notwithstanding the foregoing,
                  a
                  Guarantor shall not be required to indemnify a Lender or an Agent
                  with
                  respect to any Taxes in respect of which the Borrowers would not
                  be
                  required to indemnify the Lender or the Agent pursuant to SECTION
                  3.04 if
                  the payment had been made by the Borrowers and such Taxes arose
                  with
                  respect to any payment by or on account of any obligation of the
                  Borrowers. If a Lender or Agent receives a refund in respect of
                  Taxes or
                  Other Tax as to which it has been indemnified by the Guarantor,
                  and which
                  the Guarantors have paid, pursuant to this SECTION 12.13, it shall
                  within
                  thirty (30) days from the date of such receipt pay over such refund
                  to the
                  Guarantor net of all out-of-pocket expenses of such Lender or
                  Agent.
              95
  xxvi
  SECTION
                  12.14
              Limitation
                  on Amount Guarantied; Contribution by Guarantors.
                  Anything contained in thisARTICLE
                  XIIto
                  the contrary notwithstanding, if any Fraudulent Transfer Law is
                  determined
                  by a court of competent jurisdiction to be applicable to the obligations
                  of any Guarantor under this Agreement, such obligations of such
                  Guarantor
                  hereunder shall be limited to a maximum aggregate amount equal
                  to the
                  largest amount that would not render its obligations hereunder
                  subject to
                  avoidance as a fraudulent transfer or conveyance under Section 548 of
                  the Bankruptcy Code or any applicable provisions of the Uniform
                  Fraudulent
                  Transfer Act, the Uniform Fraudulent Conveyance Act or any other
                  comparable state law (collectively, the “Fraudulent
                  Transfer Laws”),
                  in each case after giving effect to all other liabilities of such
                  Guarantor, contingent or otherwise, that are relevant under the
                  Fraudulent
                  Transfer Laws (excluding, however, any liabilities of such Guarantor
                  (a) in respect of intercompany Indebtedness to the Borrowers or other
                  Affiliates of the Borrowers to the extent that such Indebtedness
                  would be
                  discharged in an amount equal to the amount paid by such Guarantor
                  hereunder, and (b) under any guarantee of any subordinated
                  Indebtedness which guarantee contains a limitation as to maximum
                  amount
                  similar to that set forth in thisSECTION
                  12.14,
                  pursuant to which the liability of such Guarantor hereunder is
                  included in
                  the liabilities taken into account in determining such maximum
                  amount).
              96ARTICLE
                  XIII THE AGENTS
              96SECTION
                  13.01
              Appointment
                  Powers and Immunities; Delegation of Duties; Liability of
                  Agents.
              96
  xxvii
  SECTION
                  13.02
              Reliance
                  by Agents.
                  Each Agent shall be entitled to rely, and shall be fully protected
                  in
                  relying, upon any writing, resolution, notice, consent, certificate,
                  affidavit, letter, telegram, facsimile, telex or telephone message,
                  statement or other document or conversation reasonably believed
                  by it to
                  be genuine and correct and to have been signed, sent, or made by
                  the
                  proper Person, and upon advice and statements of legal counsel
                  (including
                  counsel to the Borrowers or counsel to any Lender), independent
                  accountants and other experts selected by such Agent. Each Agent
                  shall be
                  fully justified in failing or refusing to take any action under
                  this
                  Agreement or any other Loan Document unless it first shall receive
                  such
                  advice or concurrence of the Lenders as it deems appropriate and
                  until
                  such instructions are received, such Agent shall act, or refrain
                  from
                  acting, as it deems advisable. If the Administrative Agent or the
                  Collateral Agent so requests, it first shall be indemnified to
                  its
                  reasonable satisfaction by the Lenders against any and all liability
                  and
                  expense that may be incurred by it by reason of taking or continuing
                  to
                  take any action under this Agreement or any other Loan Document.
                  The
                  Administrative Agent and the Collateral Agent in all cases shall
                  be fully
                  protected in acting, or in refraining from acting, under this Agreement
                  or
                  any other Loan Document in accordance with a request or consent
                  of the
                  Required Lenders or the Lenders, as required under this Agreement
                  and any
                  action taken or failure to act pursuant to such request or consent
                  shall
                  be binding upon all Lenders.
              97SECTION
                  13.03
              Defaults.
                  With respect to its relationship with any of the Lenders, no Agent
                  shall
                  be deemed to have knowledge or notice of the occurrence of any
                  Default or
                  Event of Default, except with respect to defaults in the scheduled
                  payment
                  of principal and interest required to be paid to such Agent for
                  the
                  account of the Lenders and except with respect to Events of Default
                  of
                  which such Agent has actual knowledge due to receipt of a written
                  notice
                  thereof from a Lender or the Administrative Borrower referring
                  to this
                  Agreement, describing such Default or Event of Default, and stating
                  that
                  such notice is a “Notice
                  of Default”.
                  Such Agent promptly will notify the Lenders of its receipt of any
                  such
                  notice or of any Event of Default of which such Agent has actual
                  knowledge. If any Lender obtains actual knowledge of any Event
                  of Default,
                  such Lender promptly shall notify the other Lenders and each Agent
                  of such
                  Event of Default. Each Lender shall be solely responsible for giving
                  any
                  notices to its Participants, if any. Subject to SECTION
                  13.03andSECTION
                  13.07,
                  each Agent shall take such action with respect to such Default
                  or Event of
                  Default as may be requested by the Required Lenders in accordance
                  withARTICLE
                  XI;provided,however,
                  that unless and until such Agent has received any such request,
                  such Agent
                  may (but shall not be obligated to) take such action, or refrain
                  from
                  taking such action, with respect to such Default or Event of Default
                  as it
                  shall deem advisable in its sole discretion.
              98
  xxviii
  SECTION
                  13.04
              Rights
                  as a Lender.
              98SECTION
                  13.05
              Costs
                  and Expenses; Indemnification.
                  Each Agent may incur and pay fees, costs, and expenses under the
                  Loan
                  Documents to the extent such Agent deems reasonably necessary or
                  appropriate for the performance and fulfillment of its functions,
                  powers,
                  and obligations pursuant to the Loan Documents, including, without
                  limiting the generality of the foregoing, court costs, reasonable
                  attorneys’ fees and expenses, costs of collection by outside collection
                  agencies, auctioneer fees, costs of security guards, insurance
                  premiums,
                  taxes, or other amounts paid to protect or maintain the Collateral
                  or to
                  enhance the likelihood of payment of the Obligations following
                  Default,
                  whether or not a Borrower is obligated to reimburse the Lenders
                  for such
                  expenses pursuant to the Loan Agreement or otherwise (to the extent
                  the
                  Borrowers have not done so and without limiting its obligation
                  to do so).
                  Each Lender hereby agrees that it is and shall be obligated to
                  pay to or
                  reimburse the Administrative Agent and the Collateral Agent for
                  the amount
                  of such Lender’s Pro Rata Share thereof. Whether or not the transactions
                  contemplated hereby are consummated, the Lenders shall indemnify
                  upon
                  demand the Agent-Related Persons (to the extent the Borrowers have
                  not
                  done so and without limiting the obligation of the Borrowers to
                  do so),
                  according to their Pro Rata Shares, from and against any and all
                  Indemnified Matters (including, without limitation, Indemnified
                  Matters
                  arising under any Environmental Law as provided inSECTION
                  14.19);provided,however,
                  that no Lender shall be liable for the payment to the Agent-Related
                  Persons of any portion of such Indemnified Matters resulting solely
                  from
                  such Person’s gross negligence or willful misconduct as determined in a
                  final order by a court of competent jurisdiction. Without limitation
                  of
                  the foregoing, each Lender shall reimburse the Administrative Agent
                  or the
                  Collateral Agent, as the case may be, upon demand for such Lender’s
                  ratable share of any costs or out-of-pocket expenses (including
                  reasonable
                  attorneys’ fees and expenses) incurred by such Agent in connection with
                  the preparation, execution, delivery, administration, modification,
                  amendment, or enforcement (whether through negotiations, legal
                  proceedings
                  or otherwise) of, or legal advice in respect of rights or responsibilities
                  under, this Agreement, any other Loan Document, or any document
                  contemplated by or referred to herein. The undertaking in this
SECTION
                  13.05shall survive the payment of all Obligations hereunder and the
                  resignation
                  or replacement of any Agent.
              99
  xxix
  SECTION
                  13.06
              Non-Reliance
                  on Agents and Other Lenders.
                  Each Lender acknowledges that none of the Agent-Related Persons
                  has made
                  any representation or warranty to it, and that no act by any Agent
                  hereinafter taken, including any review of the affairs or Property
                  of any
                  of the Credit Parties or their Subsidiaries, shall be deemed to
                  constitute
                  any representation or warranty by any Agent-Related Person to any
                  Lender.
                  Each Lender represents to each Agent that it has, independently
                  and
                  without reliance upon any Agent-Related Person and based on such
                  documents
                  and information as it has deemed appropriate, made its own appraisal
                  of
                  and investigation into the business, prospects, operations, property,
                  financial and other condition and creditworthiness of the Borrowers
                  and
                  any other Person (other than the Lenders) party to a Loan Document,
                  and
                  all applicable bank regulatory laws relating to the transactions
                  contemplated hereby, and made its own decision to enter into this
                  Agreement and to extend credit to the Borrowers. Each Lender also
                  represents that it will, independently and without reliance upon
                  any
                  Agent-Related Person and based on such documents and information
                  as it
                  shall deem appropriate at the time, continue to make its own credit
                  analysis, appraisals and decisions in taking or not taking action
                  under
                  this Agreement and the other Loan Documents, and to make such
                  investigations as it deems necessary to inform itself as to the
                  business,
                  prospects, operations, property, financial and other condition
                  and
                  creditworthiness of the Borrowers and any other Person (other than
                  the
                  Lenders) party to a Loan Document. Except for notices, reports
                  and other
                  documents expressly herein required to be furnished to the Lenders
                  by such
                  Agent, no Agent shall have any duty or responsibility to provide
                  any
                  Lender with any credit or other information concerning the business,
                  prospects, operations, Property, financial and other condition
                  or
                  creditworthiness of the Borrowers or of any other Person party
                  to a Loan
                  Document that may come into the possession of any of the Agent-Related
                  Persons.
              99
  xxx
  SECTION
                  13.07
              Failure
                  to Act.
                  Except for action expressly required of any Agent under the Loan
                  Documents, such Agent shall in all cases be fully justified in
                  failing or
                  refusing to act under any Loan Document unless it shall receive
                  further
                  assurances to its satisfaction from the Lenders of their indemnification
                  obligations underSECTION
                  13.05against any and all liability and expense that may be incurred
                  by it by
                  reason of taking or continuing to take any such action.
              100SECTION
                  13.08
              Resignation
                  of Agent.
              100SECTION
                  13.09
              Collateral
                  Sub-Agents.
                  Each Lender by its execution and delivery of this Agreement (or
                  any
                  Assignment and Acceptance hereunder), agrees that, in the event
                  it shall
                  hold any monies or other investments on account of the Borrowers
                  or any
                  other Credit Party, such monies or other investments shall be held
                  in the
                  name and under the control of the Administrative Agent or such
                  Lender, and
                  the Administrative Agent or such Lender shall hold such monies
                  or other
                  investments as a collateral sub-agent for Administrative Agent
                  and
                  Collateral Agent under this Agreement and the other Loan Documents.
                  The
                  Borrowers and each other Credit Party, by its execution and delivery
                  of
                  this Agreement, hereby consents to the foregoing.
              101SECTION
                  13.10
              Communications
                  by the Borrowers.
                  Except as otherwise provided in this Agreement, the Borrowers’
                  communications with respect to the Loan Documents shall be with
                  the
                  Administrative Agent or the Collateral Agent, as the case may be,
                  and the
                  Borrowers shall be under no obligation to communicate directly
                  with the
                  Lenders.
              101SECTION
                  13.11
              Collateral
                  Matters.
              101SECTION
                  13.12
              Restrictions
                  on Actions by the Agents and the Lenders; Sharing Payments.
              102
  xxxi
  SECTION
                  13.13
              Several
                  Obligations; No Liability.
                  Notwithstanding that certain of the Loan Documents now or hereafter
                  may
                  have been or will be executed only by or in favor of an Agent in
                  its
                  capacity as such, and not by or in favor of the Lenders, any and
                  all
                  obligations on the part of the Administrative Agent, if any, to
                  make any
                  credit available hereunder shall constitute the several (and not
                  joint)
                  obligations of the respective Lenders on a ratable basis, according
                  to
                  their respective Commitments, to make an amount of such credit
                  not to
                  exceed, in principal amount, at any one time outstanding, the amount
                  of
                  their respective Commitments. Nothing contained herein shall confer
                  upon
                  any Lender any interest in, or subject any Lender to any liability
                  for, or
                  in respect of, the business, assets, profits, losses, or liabilities
                  of
                  any other Lenders. Each Lender shall be solely responsible for
                  notifying
                  its Participants of any matters relating to the Loan Documents
                  to the
                  extent any such notice may be required, and no Lender shall have
                  any
                  obligation, duty, or liability to any Participant of any other
                  Lender.
                  Except as provided inSECTION
                  13.05,
                  no Agent and no Lender shall have any liability for the acts of
                  any other
                  Agent or any other Lender. No Lender shall be responsible to the
                  Borrowers
                  or any other Person for any failure by any other Lender to fulfill
                  its
                  obligations to make credit available hereunder, nor to advance
                  for it or
                  on its behalf in connection with its Commitment, nor to take any
                  other
                  action on its behalf hereunder, under any other Loan Document or
                  in
                  connection with the financing contemplated herein.
              103ARTICLE
                  XIVMISCELLANEOUS
              103SECTION
                  14.01
              Notices,
                  Etc.
                  All notices and other communications provided for hereunder shall
                  be in
                  writing and shall be mailed, certified mail return receipt requested,
                  telecopied, emailed or delivered by overnight delivery service
                  or in
                  person:
              103SECTION
                  14.02
              Amendments,
                  Etc.
                  No amendment or waiver of any provision of this Agreement, any
                  Loan or any
                  other Loan Document, nor consent to any departure by any Credit
                  Party
                  therefrom, shall in any event be effective unless the same shall
                  be in
                  writing and signed by the Borrowers (or the Administrative Borrower)
                  and
                  the Required Lenders (or the Administrative Agent at the request
                  of the
                  Required Lenders), and then such waiver or consent shall be effective
                  only
                  in the specific instance and for the specific purpose for which
                  given;provided,
                  however,
                  that no amendment, waiver or consent shall, in each case, without
                  the
                  consent of the Administrative Agent, the Borrowers and each Lender
                  directly affected thereby;
              105
  xxxii
  SECTION
                  14.03
              Non-Consenting
                  Lenders.
              106SECTION
                  14.04
              No
                  Waiver; Remedies, Etc.
                  No failure on the part of the Lenders or any Agent to exercise,
                  and no
                  delay in exercising, any right hereunder or under any other Loan
                  Document
                  shall operate as a waiver thereof, nor shall any single or partial
                  exercise of any right under any Loan Document preclude any other
                  or
                  further exercise thereof or the exercise of any other right. The
                  rights
                  and remedies of the Lenders and the Agents provided herein and
                  in the
                  other Loan Documents are cumulative and are in addition to, and
                  not
                  exclusive of, any rights or remedies provided by law. The rights
                  of the
                  Lenders and the Agents under any Loan Document against any party
                  thereto
                  are not conditional or contingent on any attempt by the Lenders
                  and the
                  Agents to exercise any of their rights under any other Loan Document
                  against such party or against any other Person.
              107SECTION
                  14.05
              Expenses;
                  Taxes; Attorneys’ Fees.
                  The Borrowers will pay upon demand therefor, all of the following
                  fees,
                  costs, expenses and other charges (the “Lender
                  Expenses”):
              107SECTION
                  14.06
              Right
                  of Set-Off, Sharing of Payments, Etc.
              109SECTION
                  14.07
              Severability.
                  Any provision of this Agreement, which is prohibited or unenforceable
                  in
                  any jurisdiction shall, as to such jurisdiction, be ineffective
                  to the
                  extent of such prohibition or unenforceability without invalidating
                  the
                  remaining portions hereof or affecting the validity or enforceability
                  of
                  such provision in any other jurisdiction.
              110SECTION
                  14.08
              Replacement
                  of Lenders.
                  If (a) a Lender requests compensation underSECTION
                  3.04,SECTION
                  4.02,
                  orSECTION
                  4.03,
                  or if the Credit Parties are required to pay any additional amount
                  to any
                  Lender or any Governmental Authority for the account of any Lender
                  pursuant toSECTION
                  3.04,
                  and such compensation or additional amount is not applicable to
                  the
                  Lenders generally, or (b) if any Lender defaults in its obligation
                  to fund
                  Loans hereunder, then in the case of either (a) or (b) of thisSECTION
                  14.08,
                  the Credit Parties may, at its sole expense, upon notice to such
                  Lender
                  and the Administrative Agent, require such Lender to assign and
                  delegate,
                  without recourse (in accordance with and subject to the restrictions
                  contained in this SECTION
                  14.08),
                  all its interests, rights and obligations under this Agreement
                  to an
                  assignee that shall assume such obligations (which assignee may
                  be another
                  Lender, if a Lender accepts such assignment);providedthat,
                  (i) the Credit Parties shall have received the prior written consent
                  of the Administrative Agent, which consent shall not unreasonably
                  be
                  withheld, and (ii) such Lender shall have received payment of an
                  amount equal to the outstanding principal of its Loans, accrued
                  interest
                  thereon, accrued fees and all other amounts payable to it hereunder,
                  from
                  the assignee (to the extent of such outstanding principal and accrued
                  interest and fees) or the Credit Parties (in the case of all other
                  amounts). A Lender shall not be required to make any such assignment
                  and
                  delegation if, prior thereto, as a result of a waiver by such Lender
                  or
                  otherwise, the circumstances entitling the Credit Parties to require
                  such
                  assignment and delegation cease to apply.
              110
  xxxiii
  SECTION
                  14.09
              Complete
                  Agreement; Sale of Interest.
                  The Loan Documents constitute the complete agreement between the
                  parties
                  with respect to the subject matter hereof and thereof, supersede
                  any
                  previous agreement or understanding between them relating hereto
                  or
                  thereto and may not be modified, altered or amended except by an
                  agreement
                  in writing signed by the Credit Parties and the Lenders in accordance
                  withSECTION
                  14.02.
                  The Credit Parties may not sell, assign or transfer any of the
                  Loan
                  Documents or any portion thereof, including their rights, title,
                  interests, remedies, powers and duties hereunder or thereunder.
                  The Credit
                  Parties hereby consent to any Lender’s sale of participations, assignment,
                  transfer or other disposition, at any time or times, of any of
                  the Loan
                  Documents or of any portion thereof or interest therein, including
                  such
                  Lender’s rights, title, interests, remedies, powers or duties thereunder,
                  subject, in the case of a participation, assignment, transfer or
                  other
                  disposition, to the provisions ofSECTION
                  14.10.
              110SECTION
                  14.10
              Assignment;
                  Register.
              111SECTION
                  14.11
              Administrative
                  Borrower.
              113SECTION
                  14.12
              Counterparts.
                  This Agreement may be executed in any number of counterparts and
                  by
                  different parties hereto in separate counterparts, each of which
                  shall be
                  deemed to be an original, but all of which taken together shall
                  constitute
                  one and the same agreement. Delivery of an executed counterpart
                  of this
                  Agreement or any of the other Loan Documents by telecopy shall
                  have the
                  same force and effect as the delivery of an original executed counterpart
                  of this Agreement or any of such other Loan Documents. Any party
                  delivering an executed counterpart of any such agreement by telecopy
                  shall
                  also deliver an original executed counterpart, but the failure
                  to do so
                  shall not affect the validity, enforceability or binding effect
                  of such
                  agreement.
              113
  xxxiv
  SECTION
                  14.13
              GOVERNING
                  LAW.
                  THIS AGREEMENT, THE NOTES AND, EXCEPT TO THE EXTENT OTHERWISE PROVIDED
                  THEREIN, THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED
                  IN
                  ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
              114SECTION
                  14.14
              CONSENT
                  TO JURISDICTION, SERVICE OF PROCESS AND VENUE.
                  ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
                  ANY OTHER
                  LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW
                  YORK IN THE
                  BOROUGH OF MANHATTAN, COUNTY OF NEW YORK OR OF THE UNITED STATES
                  DISTRICT
                  COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION
                  AND
                  DELIVERY OF THIS AGREEMENT, THE CREDIT PARTIES HEREBY IRREVOCABLY
                  ACCEPT
                  IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
                  JURISDICTION OF THE AFORESAID COURTS. THE CREDIT PARTIES FURTHER
                  IRREVOCABLY CONSENT TO THE SERVICE OF PROCESS OUT OF ANY OF THE
                  AFOREMENTIONED COURTS AND IN ANY SUCH ACTION OR PROCEEDING BY THE
                  MAILING
                  OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID,
                  TO THE
                  CREDIT PARTIES AT THEIR ADDRESS FOR NOTICES SET FORTH INSECTION
                  14.01,
                  SUCH SERVICE TO BECOME EFFECTIVE FIVE (5) DAYS AFTER SUCH MAILING.
                  NOTHING
                  HEREIN SHALL AFFECT THE RIGHT OF THE LENDERS OR THE AGENTS TO SERVICE
                  OF
                  PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
                  PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE CREDIT PARTIES IN
                  ANY OTHER
                  JURISDICTION. THE CREDIT PARTIES HEREBY EXPRESSLY AND IRREVOCABLY
                  WAIVE,
                  TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT
                  MAY NOW OR
                  HEREAFTER HAVE TO THE JURISDICTION OR LAYING OF VENUE OF ANY SUCH
                  LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY
                  CLAIM THAT
                  ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
                  FORUM.
              114
  xxxv
  SECTION
                  14.15
              WAIVER
                  OF JURY TRIAL, ETC.
                  THE CREDIT PARTIES, THE LENDERS AND THE AGENTS HEREBY WAIVE ANY
                  RIGHT TO A
                  TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING
                  ANY
                  RIGHTS UNDER THIS AGREEMENT, THE NOTES OR OTHER LOAN DOCUMENTS,
                  OR UNDER
                  ANY AMENDMENT, WAIVER, CONSENT, INSTRUMENT, DOCUMENT OR OTHER AGREEMENT
                  DELIVERED OR WHICH IN THE FUTURE MAY BE DELIVERED IN CONNECTION
                  THEREWITH,
                  OR ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN CONNECTION
                  WITH
                  THIS AGREEMENT, AND AGREE THAT ANY SUCH ACTION, PROCEEDING OR COUNTERCLAIM
                  SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. THE CREDIT
                  PARTIES
                  CERTIFY THAT NO OFFICER, REPRESENTATIVE, AGENT OR ATTORNEY OF THE
                  LENDERS
                  OR THE AGENTS HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE
                  LENDERS OR
                  THE AGENTS WOULD NOT, IN THE EVENT OF ANY ACTION, PROCEEDING OR
                  COUNTERCLAIM, SEEK TO ENFORCE THE FOREGOING WAIVERS. THE CREDIT
                  PARTIES
                  HEREBY ACKNOWLEDGE THAT THIS PROVISION IS A MATERIAL INDUCEMENT
                  FOR THE
                  LENDERS AND THE AGENTS ENTERING INTO THIS AGREEMENT.
              114SECTION
                  14.16
              Consent.
                  Except as otherwise expressly set forth herein or in any other
                  Loan
                  Document to the contrary, if the consent, approval, satisfaction,
                  determination, judgment, acceptance or similar action (an “Action”) of the
                  Lenders or the Agents, shall be permitted or required pursuant
                  to any
                  provision hereof or any provision of any other agreement to which
                  the
                  Borrowers or any Guarantors are parties and to which the Lenders
                  or the
                  Agents have succeeded thereto, such Action shall be required to
                  be in
                  writing and may be withheld or denied by the Lenders or the Agents
                  with or
                  without any reason in their discretion.
              115
  xxxvi
  SECTION
                  14.17
              Interpretation.
                  Neither this Agreement nor any uncertainty or ambiguity herein
                  shall be
                  construed or resolved against the Lenders, the Agents or the Borrower,
                  whether under any rule of construction or otherwise. On the contrary,
                  this
                  Agreement has been reviewed by all parties represented by counsel
                  of their
                  choosing and shall be construed and interpreted according to the
                  ordinary
                  meaning of the words used so as to accomplish fairly the purposes
                  and
                  intentions of all parties hereto.
              115SECTION
                  14.18
              Reinstatement;
                  Certain Payments.
                  If any claim is ever made upon the Lenders or the Agents for repayment
                  or
                  recovery of any amount or amounts received by the Lenders or the
                  Agents in
                  payment or received on account of any of the Obligations, the Lenders
                  or
                  the Agents shall give prompt notice of such claim to the Administrative
                  Borrower, and if the Lenders or the Agents repay all or part of
                  such
                  amount by reason of (a) any judgment, decree or order of any court of
                  competent jurisdiction or administrative body having jurisdiction
                  over the
                  Lenders or the Agents or any of their respective property, or
                  (b) compliance by the Lenders or the Agents with any requirement of
                  a
                  Governmental Authority having jurisdiction over the Lenders or
                  the Agents,
                  then and in such event the Credit Parties agree that (i) any such
                  judgment, decree or order shall be binding upon it notwithstanding
                  the
                  cancellation of any instrument evidencing the Obligations or the
                  other
                  Loan Documents or the termination of this Agreement or the other
                  Loan
                  Documents, and (ii) it shall be and remain liable to the Lenders or
                  the Agents hereunder for the amount so repaid or recovered to the
                  same
                  extent as if such amount had never originally been received by
                  the Lenders
                  or the Agents.
              115
  xxxvii
  SECTION
                  14.19
              Indemnification.
                  In addition to the Credit Parties’ other Obligations under this Agreement,
                  the Credit Parties agree to defend, protect, indemnify and hold
                  harmless
                  the Lenders and each of their respective Affiliates and their officers,
                  directors, trustees, employees, agents and advisors, the Administrative
                  Agent, the Collateral Agent, the Agent-Related Persons and the
                  Lender-Related Persons (collectively called the “Indemnitees”)
                  from and against any and all claims, losses, demands, settlements,
                  damages, liabilities, obligations, penalties, fines, fees, reasonable
                  costs and expenses (including, without limitation, reasonable attorneys’
                  fees, costs and expenses, but excluding income, franchise and similar
                  taxes of an Indemnitee) incurred by such Indemnitees (but not taxes,
                  which
                  shall be governed bySECTION
                  3.04),
                  whether prior to or from and after the Closing Date, as a result
                  of or
                  arising from or relating to or in connection with any of the following:
                  (a) the Administrative Agent, the Collateral Agent or the Lenders
                  furnishing of funds to the Credit Parties under this Agreement,
                  including,
                  without limitation, the management of any such Loans, (b) any matter
                  relating to the financing transactions contemplated by this Agreement
                  or
                  the other Loan Documents or by any document executed in connection
                  with
                  the transactions contemplated by this Agreement or the other Loan
                  Documents, (c) any claim, litigation, investigation or administrative
                  or judicial proceeding in connection with any transaction contemplated
                  in,
                  or consummated under, the Loan Documents, or (d) any claim,
                  litigation, investigation or proceeding relating to any of the
                  foregoing,
                  whether or not any Indemnitee is a party thereto, including, without
                  limitation, claims, litigations, investigations or other proceedings
                  arising out of (i) the presence, disposal, Release of any Hazardous
                  Materials on, in, at, to, from or under any property at any time
                  owned or
                  occupied by the Credit Parties (or any of their respective predecessors
                  in
                  interest or title) or at any facility which received Hazardous
                  Materials
                  generated by the Credit Parties or any of their respective predecessors
                  in
                  interest in connection with the receipt of such Hazardous Materials,
                  (ii) any personal injury (including wrongful death) or property
                  damage (real or personal) arising out of or related to any Hazardous
                  Materials generated by the Credit Parties, (iii) any investigation,
                  lawsuit brought or threatened, settlement reached or government
                  order
                  relating to such Hazardous Materials, (iv) any violation of any
                  Environmental Law by the Credit Parties or any of their respective
                  predecessors in interest, and/or (v) any Environmental Action
                  (collectively, the “Indemnified
                  Matters”);provided,however,
                  that the Credit Parties shall not have any obligations to any Indemnitee
                  under thisSECTION
                  14.19for any Indemnified Matter to the extent resulting from the gross
                  negligence or willful misconduct of such Indemnitee; provided,
                  however,
                  that no Credit Party shall be required to reimburse the legal fees
                  and
                  expenses of more than one outside counsel (in addition to up to
                  one local
                  counsel in each applicable local jurisdiction) for all Indemnitees
                  under
                  thisSECTION
                  14.19unless on advice of outside counsel, representation of all such
                  Indemnitees would be inappropriate due to the existence of an actual
                  or
                  potential conflict of interest. Such indemnification for all of
                  the
                  foregoing losses, damages, fees, costs and expenses of the Indemnitees
                  shall be due and payable promptly after demand therefor. To the
                  extent
                  that the undertaking to indemnify, pay and hold harmless set forth
                  in this
                  SECTION 14.19 may be unenforceable because it is violative of any
                  law or
                  public policy, the Credit Parties shall contribute the maximum
                  portion
                  which it is permitted to pay and satisfy under Applicable Law,
                  to the
                  payment and satisfaction of all Indemnified Matters incurred by
                  the
                  Indemnitees. This Indemnity shall survive the repayment of the
                  Obligations
                  and the discharge of the Liens granted under the Loan
                  Documents.
              115
  xxxviii
  SECTION
                  14.20
              Records.
                  The unpaid principal of, and interest on, the Obligations, the
                  interest
                  rate or rates applicable to such unpaid principal and interest,
                  the
                  duration of such applicability, the Commitment, and the accrued
                  and unpaid
                  fees payable pursuant to SECTION 4.04, shall at all times be ascertained
                  from the records of the Lender and Agents, which shall be conclusive
                  and
                  binding absent manifest or demonstrable error.
              116SECTION
                  14.21
              Binding
                  Effect.
                  This Agreement shall be binding upon and inure to the benefit of
                  the
                  Borrower, the Lenders and the Agents, and their respective successors
                  and
                  assigns, subject toSECTION
                  14.10.
              116
  xxxix
  SECTION
                  14.22
              Confidentiality.
                  The Lenders, the Administrative Agent and the Collateral Agent
                  each agree
                  (on behalf of itself and each of its Affiliates, directors, officers,
                  employees and representatives) (each, a “Recipient”)
                  to hold in confidence and not disclose, in accordance with its
                  customary
                  procedures for handling confidential information of this nature
                  and in
                  accordance with safe and sound practices of comparable commercial
                  finance
                  companies, any non-public information supplied to it by the Credit
                  Parties
                  pursuant to this Agreement or the other Loan Documents (and which
                  at the
                  time is not, and does not thereafter become, publicly available
                  or
                  available to such Person from another source not known to be subject
                  to a
                  confidentiality obligation to such Person not to disclose such
                  information), or available to such Person from another source not
                  known to
                  be subject to a confidentiality obligation to such Person not to
                  disclose
                  such information,providedthat nothing herein shall limit the disclosure of any such information
                  (a) to the extent required by Applicable Law or other statute, rule,
                  regulation or judicial process, (b) to any Lender, any Agent, or to
                  employees of or counsel, accountants, auditors and other advisors
                  for any
                  of the foregoing, (it being understood that the persons to whom
                  such
                  disclosure is made will be informed of the confidential nature
                  of such
                  information and instructed to keep such information confidential
                  pursuant
                  to the terms hereof), (c) to any actual or prospective counterparty
                  (or its advisors) to any swap or derivative transaction relating
                  to the
                  Borrowers or any of their Subsidiaries and their obligations so
                  long as
                  such counterparty or prospective counterparty first agrees in writing
                  to
                  the confidentiality provisions of thisSECTION
                  14.22,
                  (d) to third-party examiners, auditors, accountants, regulators or
                  members of any self-regulatory organization for any Agent or Lender
                  who
                  are advised of the confidential nature of such information, (e)
                  to the
                  extent required by any court, governmental or administrative agency,
                  pursuant to any subpoena or other legal process, or by any law,
                  statute,
                  regulation or court order, or in connection with any litigation
                  to which
                  any of the Agents or the Lenders are party, to cooperate, at the
                  Borrower’s sole cost and expense, with any protective order sought by the
                  Borrower, (f) to any assignee or participant (or prospective assignee
                  or participant) and to any potential successor Agent so long as
                  such
                  assignee or participant (or prospective assignee or participant)
                  or
                  potential successor Agent first agrees in writing to the confidentiality
                  provisions of thisSECTION
                  14.22,
                  (g) to any Person that is an investor or prospective investor in a
                  securitization that agrees that its access to information regarding
                  the
                  Credit Parties and the Loans is solely for purposes of evaluating
                  an
                  investment in such securitization, or (h) to a Person that is a
                  trustee, collateral manager, servicer, noteholder, rating agency
                  or
                  secured party in a securitization in connection with the administration,
                  servicing and reporting on the assets serving as collateral for
                  such
                  securitization.
              117
  xl
  SECTION
                  14.23
              Lender
                  Advertising.
                  The Agents and the Lenders shall be entitled to advertise the closing
                  of
                  the transactions contemplated by this Agreement in such trade
                  publications, business journals, newspapers of general circulation
                  and
                  otherwise, as the Agents and the Lenders shall deem appropriate,
                  including, without limitation, the publication of a tombstone announcing
                  the closing of this transaction.
              117SECTION
                  14.24
              Press
                  Releases.
                  The Credit Parties will not issue press releases describing this
                  Agreement
                  or the transactions represented hereby or conducted hereunder without
                  the
                  prior written consent of the Administrative Agent.
              117SECTION
                  14.25
              Common
                  Enterprise.
                  The successful operation and condition of the Borrowers is dependent
                  on
                  the continued successful performance of the functions of the group
                  of the
                  Credit Parties as a whole and the successful operation of each
                  Borrower is
                  dependent on the successful performance and operation of each other
                  Credit
                  Party. Each Credit Party expects to derive benefit (and its board
                  of
                  directors or other governing body has determined that it may reasonably
                  be
                  expected to derive benefit), directly and indirectly, from
                  (a) successful operations of each of the other Credit Parties, and
                  (b) the credit extended by the Lenders to the Borrowers hereunder,
                  both in their separate capacities and as members of the group of
                  companies. Each Credit Party has determined that execution, delivery
                  and
                  performance of this Agreement and any other Loan Documents to be
                  executed
                  by such Credit Party is within its purpose, will be of direct and
                  indirect
                  benefit to such Credit Party, and is in its best interest.
              117SECTION
                  14.26
              USA
                  Patriot Act.
                  Each Lender that is subject to the requirements of the Patriot
                  Act hereby
                  notifies the Borrowers and each other Credit Party that pursuant
                  to the
                  requirements of the Patriot Act, it is required to obtain, verify
                  and
                  record information that identifies each Credit Party, which information
                  includes the name and address of the Credit Party and other information
                  that will allow such Lender to identify each Credit Party in accordance
                  with the Patriot Act.
              118




xli




**SCHEDULES**





·
            Schedule
                E-1—Existing Debt·
            Schedule
                M-1—Material Contracts·
            Schedule
                M-2—Mortgaged Property·
            Schedule
                P-1—Permitted Liens·
            Schedule
                P-2—Permitted Indebtedness·
            Schedule
                2.01(a)—Lender Commitments·
            Schedule
                5.01(g)—Third Party Consents·
            Schedule
                6.01(e)—Capitalization·
            Schedule
                6.01(f)—Litigation·
            Schedule
                6.01(i)—Employee Benefit Plans·
            Schedule
                6.01(n)(i)—Real Estate Assets·
            Schedule
                6.01(n)(ii)—Mines·
            Schedule
                6.01(n)(iii)—Leases(a)
                Mining Leases,(b)
                Prep Plant Leases, and(c)
                All Other Leases·
            Schedule
                6.01(p) Environmental Matters·
            Schedule
                6.01(r)—Coal Supply Agreements·
            Schedule
                6.01(t)—Insurance·
            Schedule
                6.01(v)—Cash Management System & Control Agreements·
            Schedule
                6.01(w)—Intellectual Property·
            Schedule
                6.01(aa)—Collateral Locations(1)
                Inventory Locations(2)
                Equipment Locations(3)
                Credit Party Locations & Information(4)
                Mortgaged Property Owner & Filing Offices·
            Schedule
                6.01(bb)—Commercial Tort Claims·
            Schedule
                8.21—Post Closing Matters**EXHIBITS**·
            Exhibit
                A-1—Deposit Account of Administrative Agent and
                Borrower·
            Exhibit
                A-2—Form of Assignment and Acceptance·
            Exhibit
                B-1—Form of Borrowing Request·
            Exhibit
                B-2—Form of Borrowing Base Certificate·
            Exhibit
                C-1—Form of Collateral Access Agreement·
            Exhibit
                C-2—Form of Compliance Certificate·
            Exhibit
                N-1—Form of Note·
            Exhibit
                N-2—Form of Notice of Conversion/Continuation·
            Exhibit
                O-1—Form of Officer’s Certificate (Section 7.01(d))·
            Exhibit
                O-2—Form of Officer’s Certificate (Section 5.01(p)(ii))**ANNEXES**·
            Annex
                A—Letters of Credit·
            Annex
                B—Collateral Reports







xlii


REVOLVING
        CREDIT AGREEMENT
  This
        Revolving Credit Agreement, dated as of February 26, 2007 (as it may be amended,
        restated, modified, supplemented or extended from time to time, including
        all
        exhibits and schedules thereto, or otherwise modified, the “ Agreement ”),
        by
        and among JAMES RIVER COAL COMPANY, a corporation organized under the laws
        of
        Virginia (“ JRCC ”),
        and
        certain of JRCC’s Subsidiaries identified on the title and signature pages
        hereof, as borrowers (such Subsidiaries, together with JRCC, are referred
        to
        hereinafter each individually as a “ Borrower ”,
        and
        collectively, jointly and severally, as the “ Borrowers ”),
        and
        the other credit parties hereto from time to time, as Guarantors (together,
        the
        Borrowers and Guarantors, the “ Credit
        Parties ”),
        the
        lenders party hereto from time to time (the “ Lenders ”),
        GENERAL ELECTRIC CAPITAL CORPORATION (“ GE ”),
        a
        corporation formed under the laws of Delaware, as co-lead arranger and as
        administrative agent for the Lenders (in such capacity, together with its
        successors and assigns, if any, the “ Administrative
        Agent ”)
        and as
        collateral agent for the Lenders (in such capacity, the “ Collateral
        Agent ”),with
        MORGAN STANLEY SENIOR FUNDING, INC., having acted as co-lead arranger for
        the
        Lenders with GE.
  RECITALS
  WHEREAS,
        the Borrowers have requested that the Lenders make available to them the
        Commitments (as defined below), on the terms and conditions set forth herein,
        to, among other things, fund transaction costs, working capital requirements
        and
        other general corporate purposes of the Borrowers; and
  WHEREAS,
        the Lenders are willing to make the Loans to the Borrowers upon the terms
        and
        conditions set forth herein;
  NOW
        THEREFORE, in consideration of the premises and the covenants and agreements
        contained herein and other good and valuable consideration the receipt and
        sufficiency of which are hereby acknowledged, the parties hereto hereby agree
        as
        follows:
  ARTICLE
        I
 DEFINITIONS;
        CERTAIN TERMS
  SECTION
        1.01 Definitions . As
        used
        in this Agreement, the following terms shall have the respective meanings
        indicated below, such meanings to be applicable equally to both the singular
        and
        plural forms of such terms:
  “ 2005
        Financial Statements ”
means
        the audited consolidated balance sheet of the JRCC for the Fiscal Year
        ended December 31, 2005 and the related consolidated statement of
        operations, shareholders’ equity and cash flows for the Fiscal Year then
        ended, together with management’s discussion and analysis and any management
        letters submitted by the auditors for JRCC.
  “ 2006
        Financial Statements ”
means
        the unaudited consolidated balance sheet of JRCC for the Fiscal Year ended
        December 31, 2006 prepared on a basis consistent with and in accordance with
        GAAP, together with monthly unaudited financials for any Fiscal Month ended
        at
        least 30 days prior to the Closing Date.
  
  “ Account ”
means
        those “ accounts ”
as
        that
        term is defined in the UCC.
  “ Account
        Debtor ”
means
        an “ account
        debtor ”
as
        that
        term is defined in the UCC.
  “ Action ”
has
        the
        meaning ascribed to such term in SECTION
        14.16 .
  “ Administrative
        Agent ”
has
        the
        meaning ascribed to such term in the introductory paragraph hereto.
  “ Administrative
        Agent’s Account ”
means
        the account identified on Exhibit A-1 and such
        other Deposit Account as the Administrative Agent may from time to time specify
        in writing to the Administrative Borrower and the Lenders.
  “ Administrative
        Agent’s Office ”
means
        the office of the Administrative Agent located at 201 Merritt 7, 3 rd Floor,
        Norwalk, Connecticut, 06851 or such other office as may be designated pursuant
        to the provisions of SECTION
        14.01 .
  “ Administrative
        Borrower ”
has
        the
        meaning ascribed to such term in SECTION
        14.11 .
  “ Affiliate ”,
        as
        applied to any Person, means any other Person directly or indirectly
        controlling, controlled by, or under common control with, that Person. For
        the
        purposes of this definition, “control” (including, with correlative meanings,
        the terms “controlling”, “controlled by” and “under common control with”), as
        applied to any Person, means the possession, directly or indirectly, of the
        power to direct or cause the direction of the management and policies of
        such
        specified Person, whether through the ownership of voting Securities or by
        contract or otherwise.
  “ Agent-Related
        Persons ”
means
        each of the Agents and its Affiliates, and the officers, directors, employees,
        counsel, agents, and attorneys-in-fact of such Agent and its
        Affiliates.
  “ Agents ”
means,
        collectively, the Administrative Agent and the Collateral Agent.
  “ Agents
        Fee Letter ”
means
        the fee letter signed as of the Closing Date between the Borrowers and the
        Agents.
  “ Aggregate
        Revolver Exposure ”
means
        the sum of (a) the outstanding Revolving Advances under this Agreement and
        (b) the Letter of Credit Usage under this Agreement.
  “ Agreement ”
means
        this Revolving Credit Agreement, together with all Exhibits and Schedules
        hereto, as such agreement may be amended, supplemented or otherwise modified
        from time to time.
  “ Applicable
        Law ”
means,
        in respect of any Person, all provisions of constitutions, laws, statutes,
        rules, regulations, treaties, directives, guidelines and orders of Governmental
        Authorities applicable to such Person, including zoning ordinances, all
        Environmental Laws, and all orders, decisions, judgments and decrees of all
        courts and arbitrators in proceedings or actions to which the Person in question
        is a party or by which it is bound.
  2
  “ Applicable
        Margin ”
means,
        one percentage point (1%) in the case of Base Rate Loans and two percentage
        points (2%) in the case of LIBOR Rate Loans.
  “ Approved
        Fund ”
means
        any Fund that is administered or managed by (a) a Lender, (b) an
        Affiliate of a Lender, or (c) an entity or an Affiliate of an entity that
        administers or manages a Lender.
  “ Asset
        Disposition ”
has
        the
        meaning ascribed to such term in SECTION
        9.04 .
  “ Assignment
        and Acceptance ”
means
        an Assignment and Acceptance substantially in the form of Exhibit
        A-2 attached
        hereto and made a part hereof (with blanks appropriately completed) delivered
        to
        the Administrative Agent in connection with an assignment of a Lender’s interest
        under this Agreement in accordance with SECTION
        14.10(b) .
  “ Authorized
        Officer ”
means,
        with respect to any Credit Party, the chief executive officer, chief
        administrative officer, chief financial officer, vice president of financial
        compliance and reporting, treasurer, controller or chief accounting officer
        or
        other officer with similar responsibility designated by the Board of Directors
        or similar governing body of the Credit Party.
  “ Availability ”
means
        at any time (a) the lesser of (i) the Maximum Revolver Amount minus
        the Indenture Reserve and (ii) the Borrowing Base, minus (b) Reserves (other than Reserves deducted in the calculation of the
        Borrowing Base), minus (c) the Aggregate Revolver Exposure at such time relating to
        extensions of credit made or to be made to or for the account of
        any Credit Party under this Agreement.
  “ Availability
        Period ”
means
        the period from the Closing Date to the Maturity Date.
  “ Backstop
        Letter of Credit ”
has
        the
        meaning ascribed to such term in clause (c)(ii) of Annex A.
  “ Bankruptcy
        Code ”
means
        Title 11 of the United States Code (11 U.S.C. §§ 101 et  seq .),
        as
        amended from time to time, and any successor statute.
  “ Base
        Rate ”
means
        the higher of (a) the Federal Funds Rate plus one half of one percent, and
        (b)
        the Prime Rate.
  “ Base
        Rate Loans ”
means
        Loans that bear interest at an interest rate based on the Base
        Rate.
  “ Bell
        County Assets ”
means
        the assets or stock of Bell County Coal Corporation, a Delaware
        corporation.
  3
  “ Bell
        County Disposition ”
means
        the asset or stock sale by one or more of the Borrowers of the Bell County
        Assets.
  “ Bell
        County Net Proceeds ”
means
        the Net Cash Proceeds received by any Credit Party from the sale of its Bell
        County Assets.
  “ Benefit
        Plan ”
means
        an employee pension benefit plan to which any Borrower has contributed, or
        has
        been obligated to contribute within the last three years, excluding any
        Multiemployer Plan, which is subject to Title IV of ERISA or subject to the
        minimum funding standards under Section 412 of the Code.
  “ Black
        Lung Act ”
means
        together, the Black Lung Benefits Revenue Act of 1977, as amended, and the
        Black
        Lung Benefits Reform Act of 1977, as amended.
  “ Borrower ”
and
        “ Borrowers ”
have
        the meaning ascribed to such terms in the introductory paragraph
        hereto.
  “ Borrower
        Funding Account ”
shall
        mean the account listed for the Borrowers in Exhibit A-1 or such
        other Deposit Account as the Administrative Borrower may from time to time
        specify in writing to the Administrative Agent.
  “ Borrowing
        Base ”
means
        an amount equal to (a) the sum of (i) up to eighty-five (85%) of the
        Eligible Accounts of the Borrowers; plus (ii) the lesser of
        (A) up to sixty percent (60%) of the value of Eligible Inventory of the
        Borrowers valued at the lower of cost (on a first-in, first-out basis) or
        market (defined as the NYMEX spot price for 12.,500 1.2% coal on a barge in
        Big Sandy River) and (B) up to eighty-five percent (85%) of the Net Orderly
        Liquidation Value of Eligible Inventory of the Borrowers; minus (b) Reserves(other than the Indenture Reserve) from time to time
        established by the Administrative Agent in its reasonable credit judgment
        with
        respect to the Borrowers; provided ,
        that
        for purposes of the calculation of the Borrowing Base, (i) the cost of the
        Inventory shall not include: (A) the portion of the cost of Inventory equal
        to the profit earned by any Affiliate on the sale thereof to any Borrower
        or
        (B) write-ups or write-downs in cost with respect to currency exchange
        rates, and (ii) notwithstanding anything to the contrary contained herein,
        the cost of the Inventory shall be computed in the same manner and consistent
        with the most recent appraisal of the Inventory which has been received and
        approved by Collateral Agent in its reasonable discretion.
  “ Borrowing
        Base Certificate ”
means
        a
        certificate by a Senior Officer of the Borrower, substantially in the form
        of Exhibit
        B-2 (or
        another form acceptable to the Administrative Agent) setting forth the
        calculation of the Borrowing Base, including a calculation of each
        component thereof, all in such detail as shall be reasonably satisfactory
        to
        the Administrative Agent. All calculations of the Borrowing Base in
        connection with the preparation of any Borrowing Base Certificate shall
        originally be made by the Administrative Borrower and certified to the
        Administrative Agent; provided ,
        that
        the Administrative Agent shall have the right to review and adjust, in the
        exercise of its reasonable credit judgment, any such calculation (1) to
        reflect its reasonable estimate of declines in value of any of the Collateral
        described therein, and (2) to the extent that such calculation is not in
        accordance with this Agreement.
  4
  “ Borrowing
        Request ”
means
        a
        request and certification in substantially the form attached as Exhibit
        B-1 hereto,
        executed by a Senior Officer of the Administrative Borrower and delivered
        to the
        Administrative Agent from time to time after the Closing Date.
  “ Business
        Day ”
means
        any day that is not a Saturday, a Sunday or a day on which commercial banks
        are
        required or permitted to be closed in the State of New York; provided  that when
        used in connection with a rate determination, borrowing or payment in respect
        of
        a LIBOR Rate Loan, the term “ Business
        Day ”
shall
        also exclude any day on which banks in London, England are not open for dealings
        in Dollar deposits in the London interbank market.
  “ Capital
        Expenditures ”
means,
        with respect to any Person for any period, the sum of the aggregate of all
        expenditures by such Person and its Subsidiaries arising during such period
        that, in accordance with GAAP, are or should be included in the “property, plant
        and equipment” account on its consolidated balance sheet, including all
        applicable Capitalized Lease Obligations with respect to “property, plant and
        equipment”, paid or payable during such period, plus any other capital
        expenditures of such Person and its consolidated Subsidiaries that are set
        forth
        in a consolidated statement of cash flows of such person for such period
        prepared in accordance with GAAP, excluding in each case, (a) any such
        expenditures made for the repair, replacement or restoration of assets to
        the
        extent paid or reimbursed by any insurance policy or condemnation award to
        the
        extent such expenditures for reinvestment are permitted under the Loan
        Documents, and (b) any leasehold improvement expenditures to the extent
        paid or reimbursed by the applicable lessor, sublessor or
        sublessee.
  “ Capitalized
        Lease ”
means,
        with respect to any Person, any lease of real or personal property by such
        Person as lessee which is required under GAAP to be capitalized on the balance
        sheet of such Person.
  “ Capitalized
        Lease Obligations ”
means,
        with respect to any Person, obligations of such Person and its Subsidiaries
        as
        lessee under Capitalized Leases as determined in accordance with
        GAAP.
  “ Cash
        Collateral ”
and
        “ Cash
        Collateral Account ”
have
        the meanings ascribed to such terms in Annex A .
  “ Cash
        Equivalents ”
means
        (a) marketable direct obligations issued or unconditionally guaranteed by
        the United States government or issued by an agency thereof and backed by
        the
        full faith and credit of the United States, in each case maturing within
        one (1)
        year after the date of acquisition thereof; (b) marketable direct
        obligations issued by any state of the United States of America or any political
        subdivision of any such state or any public instrumentality thereof maturing
        within one (1) year after the date of acquisition thereof and, at the time
        of
        acquisition, having one of the two highest ratings obtainable from either
        S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall be
        rating such obligations, then from such other nationally recognized rating
        services reasonably acceptable to the Administrative Agent) and not listed
        in
        Credit Watch published by S&P; (c) commercial paper, other than
        commercial paper issued by the Borrowers or any of their Subsidiaries, maturing
        no more than two hundred seventy (270) days after the date of acquisition
        thereof and, at the time of acquisition, having a rating of at least A-1
        or P-1,
        respectively, from either S&P or Moody’s (or, if at any time neither S&P
        nor Moody’s shall be rating such obligations, then the comparable rating from
        such other nationally recognized rating services reasonably acceptable to
        the
        Administrative Agent); (d) domestic and Eurodollar certificates of deposit
        or time deposits or bankers’ acceptances maturing within one (1) year after the
        date of acquisition thereof issued by any commercial bank organized under
        the
        laws of the United States of America or any state thereof or the District
        of
        Columbia or Canada having combined capital and surplus of not less than
        $500,000,000 or by any Lender; and (e) shares of money market or mutual
        funds that are required to have a net asset value of $1.00 per share with
        assets
        in excess of $250,000,000 and that invest exclusively in assets satisfying
        the
        requirements of clauses (a) through (e) of this definition.
  5
  “ Cash
        Management Account ”
has
        the
        meaning ascribed to such term in SECTION
        5.01(v)(i).
  “ Cash
        Management Agreement ”
has
        the
        meaning ascribed to such term in SECTION
        5.01(v)(ii) .
  “ Cash
        Management Bank ”
has
        the
        meaning ascribed to such term in SECTION
        5.01(v)(i) .
  “ Casualty ”
means
        any casualty, loss, damage, destruction or other similar loss with respect
        to real or personal property or improvements.
  “ Change
        of Control ”
means,
        at any time, (i) that any “ person ”
or
        “ group ”
(within
        the meaning of Sections 13(d) and 14(d) of the Exchange Act) shall own
        directly or indirectly, beneficially or of record, Equity Interests
        representing more than 50% of either the aggregate ordinary voting power
        or the
        aggregate equity value represented by the issued and outstanding Equity
        Interests in JRCC; (ii) JRCC shall cease to beneficially own and
        control 100% on a fully diluted basis of the economic and voting interest
        in the
        Equity Interests of its Wholly-Owned Subsidiaries except as otherwise
        permitted hereunder; or (iii) the majority of the seats (other than vacant
        seats) on the board of directors of JRCC cease to be occupied by Persons
        who either (a) were members of the board of directors of JRCC on the
        Closing Date, or (b) were nominated for election by the board of directors
        of JRCC, a majority of whom were directors on the Closing Date or whose
        election or nomination for election was previously approved by a majority
        of
        such directors.
  “ Closing
        Date ”
means
        the Business Day, on or before February 26, 2007, on which all of the conditions
        precedent set forth in SECTION
        5.01 have
        been satisfied (or waived in accordance with the terms of this
        Agreement).
  “ Coal
        Act ”
means
        the Coal Industry Retiree Health Benefits Act of 1992, as amended.
  “ Coal
        Handling Facility ”
means
        any coal handling facility, including all necessary electrical, water and
        plumbing lines and systems necessary to operate such coal handling facility,
        such as, but not limited to, all tipples, conveyor belts and systems, loading
        and coal washing facilities and railroad tracks and all other surface or
        subsurface machinery, equipment, fixtures, goods, inventory, facilities,
        supplies and other property of whatsoever kind or nature now or hereafter
        located on or under any of the property which are used or useful for the
        mining,
        gathering, extraction, loading, production, treatment, processing, storage
        or
        transportation of coal and other minerals, all coal storage and transportation
        facilities, administrative facilities and vehicle parking facilities related
        thereto and all leases in respect of the foregoing.
  6
  “ Coal
        Supply Agreements ”
means
        those contracts entered into by a Borrower or any Subsidiary of a Borrower
        for
        the sale, purchase, exchange, processing or handling of coal.
  “ Code ”
means
        the Internal Revenue Code of 1986, as amended, and the regulations promulgated
        thereunder, in each case as in effect from time to time. References to sections
        of the Code shall be construed also to refer to any successor
        sections.
  “ Collateral ”
means
        all current and future assets, properties and rights of each Credit Party,
        including all affiliate indebtedness, all Intellectual Property, all
        receivables, all leaseholds, all license and other contract rights; and all
        products and proceeds of any of the foregoing, including insurance policies
        and
        proceeds and shall include Mortgaged Property and all assets defined as
“Collateral” in, or otherwise subject to the Lien of, the Security Agreement or
        any Security Documents.
  “ Collateral
        Access Agreement ”
means
        an agreement in the form set forth in Exhibit
        C-1 .
  “ Collateral
        Agent ”
has
        the
        meaning ascribed to such term in the introductory paragraph hereto.
  “ Collections ”
means
        all cash, checks, notes, instruments, and other items of payment (including
        insurance and condemnation proceeds, cash proceeds of sales and other voluntary
        or involuntary dispositions of property, rental proceeds, royalties, settlements
        and tax refunds).
  “ Commitment ”
means,
        with respect to any Lender, the obligation of such Lender to make a Loan
        pursuant to the terms and conditions of this Agreement, and which shall not
        exceed the principal amount set forth opposite such Lender’s name on Schedule
        2.01(a) under
        the heading “ Commitment ”,
        and
“ Commitments ”
means
        the aggregate principal amount of the Commitments of all the Lenders up to
        the
        Maximum Revolver Amount.
  “ Compliance
        Certificate ”
has
        the
        meaning ascribed to such term in SECTION
        7.01(d) .
  “ Condemnation ”
means
        any taking by a Governmental Authority of property or assets, or any part
        thereof or interest therein, for public or quasi-public use under the power
        of
        eminent domain, by reason of any public improvement or condemnation or in
        any
        other manner.
  “ Consolidated
        EBITDA ”
means,
        with respect to any Person for any period, the consolidated Net Income of
        such
        Person for such period plus ,
        without
        duplication, the sum of the following amounts of such Person for such period
        to
        the extent deducted in the determination of consolidated Net Income of such
        Person for such period: (a) Net Interest Expense and all fees and charges
        in
        connection with the Agreement, the Term Credit Agreement and the Prior Credit
        Agreement, (b) provisions for federal, state, local, and foreign income,
        value
        added and similar Taxes, (c) depreciation expense, (d) amortization expense,
        (e)
        non-cash extraordinary, unusual or non-recurring losses (determined on an
        after
        tax basis), and (f) non-cash expenses from the granting of stock options
        and
        restricted stock grants minus ,
        the
        amount of non-cash extraordinary, unusual or non-recurring gains
        (determined on an after tax basis) of such Person for such period to the
        extent
        added in the determination of consolidated Net Income of such Person for
        such
        period. For the avoidance of doubt, the calculation of Consolidated EBITDA
        shall
        exclude any non-cash prepaid asset write-off related to KRP in the amount
        of six
        million Dollars ($6,000,000) for Fiscal Year 2007.
  7
  “ Consolidated
        Funded Indebtedness ”
means,
        with respect to any Person at any date, all Debt for Borrowed Money of such
        Person, determined on a consolidated basis in accordance with GAAP, including,
        in any event, but without duplication, with respect to the Credit Parties,
        the
        Loans (including any outstanding Letter of Credit hereunder), the amount
        of the
        Term Loan Obligations (as that term is defined in the Term Loan Agreement
        in
        effect as of the date hereof) and the amount of their Capitalized Lease
        Obligations.
  “ Contingent
        Obligation ”
means,
        with respect to any Person, any obligation of such Person guaranteeing or
        intended to guarantee any Indebtedness of any other Person in any manner,
        whether directly or indirectly, including, without limitation, (a) the
        direct or indirect guaranty, endorsement (other than for collection or deposit
        in the ordinary course of business), co-making, discounting with recourse
        or
        sale with recourse by such Person of the obligation of a primary obligor,
        (b) the obligation to make take-or-pay or similar payments, if required,
        regardless of nonperformance by any other party or parties to an agreement,
        or
        (c) any obligation of such Person, whether or not contingent, (i) to
        purchase any such primary obligation or any property constituting direct
        or
        indirect security therefor, (ii) to advance or supply funds (A) for
        the purchase or payment of any such primary obligation, or (B) to maintain
        working capital or equity capital of the primary obligor or otherwise to
        maintain the net worth or solvency of the primary obligor, (iii) to
        purchase property, assets, Securities or services primarily for the purpose
        of
        assuring the owner of any such primary obligation of the ability of the primary
        obligor to make payment of such primary obligation, or (iv) otherwise to
        assure or hold harmless the holder of such primary obligation against loss
        in
        respect thereof.
  “ Control
        Agreement ”
means,
        with respect to a Securities Account or a Deposit Account, an agreement,
        in form
        and substance reasonably satisfactory to the Collateral Agent, which effectively
        gives “ control ”
(as
        defined in the UCC) to the Collateral Agent in such Securities Account and
        all
        investment property contained therein or such Deposit Account and all funds
        contained therein, as the case may be.
  “ Conversion
        Amount ”
has
        the
        meaning ascribed to such term in Annex
        A .
  “ Copyrights ”
means,
        with respect to the Credit Parties (i) all copyrights arising under the
        laws of the United States, any other country, or union of countries, or any
        political subdivision of any of the foregoing, whether registered or
        unregistered and whether published or unpublished, all registrations and
        recordings thereof, and all applications in connection therewith and rights
        corresponding thereto throughout the world, including all registrations,
        recordings and applications in the United States Copyright Office, and (ii)
        all
        other rights of any kind whatsoever accruing thereunder or pertaining thereto
        including rights to receivables and royalties from the exploitation
        thereof.
  8
  “ Credit
        Parties ”
means,
        collectively, the Borrowers and the Guarantors.
  “ Debt
        for Borrowed Money ”
of
        any
        Person means, at any date of determination, without duplication, the sum
        of
        (a) all items that, in accordance with GAAP, would be classified as
        indebtedness on a consolidated balance sheet of such Person at such date,
        (b) all Obligations of such Person under acceptance, letter of credit or
        similar facilities at such date, whether or not drawn, and (c) the Term Loan
        Obligations; provided  that ,
        with
        respect to the Borrowers and their Subsidiaries, Debt for Borrowed Money
        shall
        exclude, to the extent otherwise included in the items in clause (a) or (b)
        above, (i) accounts payable and accrued liabilities in the ordinary course
        of business of the Borrowers and their Subsidiaries so long as no longer
        than 90
        days past due, and (ii) notes, bills and checks presented in the ordinary
        course of business by such Person to banks for collection or
        deposit.
  “ Default ”
means
        an event which, with the giving of notice or the lapse of time or both, would
        constitute an Event of Default.
  “ Defaulting
        Lender ”
has
        the
        meaning ascribed to such term in SECTION
        2.01(f) .
  “ Deposit
        Account ”
means
        a
“ deposit
        account ”
as
        that
        term is defined in Article 9 of the UCC.
  “ Disposition ”
means
        any transaction, or series of related transactions, pursuant to which any
        Credit
        Party conveys, sells, leases or subleases, assigns, transfers or otherwise
        disposes of any part of its business, property or assets (whether now owned
        or
        hereafter acquired) to any other Person, in each case whether or not the
        consideration therefor consists of cash, Securities or other assets, excluding
        any sales of Inventory in the ordinary course of business.
  “ Dollar ”,
        “ Dollars ”
and
        the
        symbol “ $ ”
each
        means lawful money of the United States of America.
  “ Domestic
        Subsidiary ”
means
        any Subsidiary organized under the laws of the United States of America,
        any
        State thereof or the District of Columbia.
 9
 “ Eligible
        Accounts ”
means
        those Accounts created by a Borrower in the ordinary course of its business,
        that arise out of the sale or other disposition of Inventory or provision
        of
        services and that comply with each of the representations and warranties
        respecting Eligible Accounts made in the Loan Documents, and that are not
        excluded as ineligible by virtue of one or more of the excluding criteria
        set
        forth below; provided, however, that such criteria may be revised from time
        to
        time by the Administrative Agent in the Administrative Agent’s discretion to
        address the results of any audit performed by or on behalf of the Administrative
        Agent from time to time after the Closing Date. In determining the amount
        to be
        included, Eligible Accounts shall be calculated net of customer deposits
        and
        unapplied cash. Eligible Accounts shall not include the following:
  (a) Accounts
        that the Account Debtor has failed to pay within 90 days of original invoice
        date or Accounts more than 60 days from the original due date,
  (b) Accounts
        owned by an Account Debtor (or its Affiliates) where 50% or more of all Accounts
        owed by that Account Debtor (or its Affiliates) are deemed ineligible under
        clause (a) above,
  (c) Accounts
        with respect to which the Account Debtor is an Affiliate of any Borrower
        or an
        employee or agent of any Borrower or any Affiliate of any Borrower,
  (d) Accounts
        arising in a transaction wherein goods are placed on consignment or are sold
        pursuant to a guaranteed sale, a sale or return, a sale on approval, a bill
        and
        hold, or any other terms by reason of which the payment by the Account Debtor
        may be conditional,
  (e) Accounts
        that are not payable in Dollars,
  (f) Accounts
        with respect to which the Account Debtor either (i) does not maintain its
        chief
        executive office in the United States, or (ii) is not organized under the
        laws
        of the United States or any state thereof, or (iii) is the government of
        any
        foreign country or sovereign state, or of any state, province, municipality,
        or
        other political subdivision thereof, or of any department, agency, public
        corporation, or other instrumentality thereof, unless (y) the Account is
        supported by an irrevocable letter of credit satisfactory to the Administrative
        Agent (as to form, substance, and issuer or domestic confirming bank) that
        has
        been delivered to the Administrative Agent and is directly drawable by the
        Administrative Agent, or (z) the Account is covered by credit insurance in
        form,
        substance, and amount, and by an insurer, satisfactory to the Administrative
        Agent,
  (g) Accounts
        with respect to which the Account Debtor is either (i) the United States
        or any
        department, agency, or instrumentality of the United States (exclusive, however,
        of Accounts with respect to which the applicable Borrower has complied, to
        the
        reasonable satisfaction of the Administrative Agent, with the Assignment
        of
        Claims Act, 31 USC § 3727), or (ii) any state of the United States,
  (h) Accounts
        with respect to which the Account Debtor is a creditor of any Borrower, has
        or
        has asserted a right of setoff, has the right to a rebate, or has disputed
        its
        obligation to pay all or any portion of the Account, to the extent of such
        claim, right of setoff, rebate, or dispute,
  (i) Accounts
        with respect to an Account Debtor whose total obligations owing to Borrowers
        exceed 10% (such percentage, as applied to a particular Account Debtor, being
        subject to reduction by the Administrative Agent in its discretion if the
        creditworthiness of such Account Debtor deteriorates) of all Eligible Accounts,
        except as otherwise may be agreed by the Administrative Agent, to the extent
        of
        the obligations owing by such Account Debtor in excess of such percentage
        (it
        being understood that the Administrative Agent has agreed that such percentage
        may be as high as 35% in the case of certain Account Debtors having a corporate
        rating of A or better from S&P); provided, however, that, in each case, the
        amount of Eligible Accounts that are excluded because they exceed the foregoing
        percentage shall be determined by the Administrative Agent based on all of
        the
        otherwise Eligible Accounts prior to giving effect to any eliminations based
        upon the foregoing concentration limit,
  10
  (j) Accounts
        with respect to which the Account Debtor is subject to an Insolvency Proceeding,
        is not Solvent, has gone out of business, or as to which a Borrower has received
        notice of an imminent Insolvency Proceeding or a material impairment of the
        financial condition of such Account Debtor, except as otherwise agreed by
        the
        Administrative Agent,
  (k) Accounts
        with respect to which the Account Debtor is located in a state or jurisdiction
        (e.g., New Jersey, Minnesota, and West Virginia) that requires, as a condition
        to access to the courts of such jurisdiction, that a creditor qualify to
        transact business, file a business activities report or other report or form,
        or
        take one or more other actions, unless the applicable Borrower has so qualified,
        filed such reports or forms, or taken such actions (and, in each case, paid
        any
        required fees or other charges), except to the extent that the applicable
        Borrower may qualify subsequently as a foreign entity authorized to transact
        business in such state or jurisdiction and gain access to such counts, without
        incurring any cost or penalty viewed by the Administrative Agent to be
        significant in amount, and such later qualification cures any access to such
        courts to enforce payment of such Account,
  (l) Accounts,
        the collection of which, the Administrative Agent, in its discretion, believes
        to be doubtful by reason of the Account Debtor’s financial
        condition,
  (m) Accounts
        that are not subject to a valid and perfected first-priority Lien in favor
        of
        the Collateral Agent,
  (n) Accounts
        with respect to which (i) the goods giving rise to such Account have not
        been
        shipped and billed to the Account Debtor, or (ii) the services giving rise
        to
        such Account have not been performed and billed to the Account Debtor,
  (o) Accounts
        that represent the right to receive progress payments or other advance billings
        that are due prior to the completion of performance by the applicable Borrower
        of the subject contract for goods or services, or
  (p) amounts
        recorded by a Borrower as adjustments to invoiced amounts for quality, quantity,
        or earned synfuel fees.
  “ Eligible
        Assignee ”
means
        (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund;
        (d) a commercial bank having total assets in excess of $250,000,000;
        (e) a finance company, insurance company, or other financial institution or
        fund that is engaged in making, purchasing, or otherwise investing in commercial
        loans in the ordinary course of its business and having (together with its
        Affiliates) total assets in excess of $250,000,000; or (f) any other Person
        approved by the Administrative Agent and, if no Event of Default has occurred
        and is continuing, the Borrowers(such approval not to be unreasonably withheld,
        delayed or conditioned).
 11
 “ Eligible
        Inventory ”
means,
        the Inventory owned consisting of out of the ground coal (and excluding any
        so-called “pit coal”) by a Borrower (other than Triad Mining, Inc. and Triad
        Underground Mining, LLC) and reflected in the most recent Borrowing Base
        Certificate delivered by the Administrative Borrower to the Administrative
        Agent, except any Inventory to which any of the exclusionary criteria set
        forth
        below applies. The Administrative Agent shall have the right to establish,
        modify or eliminate Reserves against Eligible Inventory from time to time
        in its
        reasonable credit judgment. In addition, the Administrative Agent reserves
        the
        right, at any time and from time to time after the Closing Date, to adjust
        the
        criteria set forth below and to establish new criteria and to adjust advance
        rates with respect to Eligible Inventory, in its reasonable credit judgment
        reflecting changes in the salability or realization values of Inventory arising
        or discovered by the Administrative Agent after the Closing Date; providedthat any
        increase in the advance rates shall only be effective if approved by Required
        Lenders. Eligible Inventory shall not include any Inventory of any Borrower
        that:
  (a) is
        not
        owned by such Borrower free and clear of all Liens and rights of any other
        Person (including the rights of a purchaser that has made progress payments
        and
        the rights of a surety that has issued a bond to assure such Borrower’s
        performance with respect to that Inventory), except the Liens in favor of the
        Collateral Agent, on behalf of the Lenders, and Liens in favor of the collateral
        agent under the Term Loan Agreement;
  (b) (i)
        is
        not located on premises owned, leased or rented by such Borrower, or (ii)
        is
        stored at a leased location, unless Administrative Agent has given its prior
        consent thereto and unless either (x) a reasonably satisfactory landlord
        waiver
        has been delivered to Administrative Agent, or (y) Reserves reasonably
        satisfactory to Administrative Agent have been established with respect thereto,
        or (iii) is stored with a bailee or warehouseman unless a reasonably
        satisfactory, acknowledged Bailee Letter has been received by Administrative
        Agent or Reserves reasonably satisfactory to Agent have been established
        with
        respect thereto, or (iv) is located at an owned location subject to a mortgage
        in favor of a lender other than Administrative Agent unless a reasonably
        satisfactory mortgagee waiver has been delivered to Administrative Agent,
        or (v)
        is located at any site if the aggregate book value of Inventory at any such
        location is less than $100,000;
  (c) is
        placed
        on consignment or is in transit, except for Inventory in transit between
        domestic locations of Credit Parties as to which the Collateral Agent has
        perfected its Lien at origin and destination;
  (d) is
        covered by a negotiable document of title, unless such document has been
        delivered to Administrative Agent with all necessary endorsements, free and
        clear of all Liens except those in favor of Collateral Agent and Liens in
        favor
        of the Term Loan Collateral Agent;
  (e) is
        obsolete, slow moving (in excess of one year’s supply), unsalable, shopworn,
        seconds, damaged or unfit for sale;
  (f) consists
        of display items, samples or packing or shipping materials, manufacturing
        or
        mining supplies, work in process Inventory or replacement parts or is coal
        or
        other mineral rights before extraction;
  (g) consists
        of goods which have been returned by the buyer;
  12
  (h) is
        not of
        a type held for sale in the ordinary course of such Borrower’s
        business;
  (i) is
        not
        subject to a first-priority lien in favor of Collateral Agent on behalf of
        itself and Lenders, subject to Liens in favor of the Term Loan Collateral
        Agent;
  (j) breaches
        any of the representations or warranties pertaining to Inventory set forth
        in
        the Loan Documents;
  (k) consists
        of any costs associated with “freight in” charges;
  (l) consists
        of Hazardous Materials or goods that can be transported or sold only with
        licenses that are not readily available;
  (m) is
        not
        covered by casualty insurance reasonably acceptable to Administrative Agent;
        or
  (n) is
        subject to any patent or trademark license requiring the payment of royalties
        or
        fees or requiring the consent of the licensor for a sale thereof by Collateral
        Agent.
  “ Environmental
        Actions ”
means
        any complaint, summons, citation, notice, directive, order, claim, litigation,
        investigation, judicial or administrative proceeding, judgment, letter or
        other
        communication from any Governmental Authority or other Person alleging
        violations of, or liability under, any Environmental Law or Releases of
        Hazardous Materials on, in, at, to, from or under (i) any assets,
        properties or businesses of the Borrowers or any of their Subsidiaries or
        any of
        their respective predecessors in interest, and (ii) any facilities which
        received Hazardous Materials generated by the Borrowers or any of their
        Subsidiaries or any of their respective predecessors in interest.
  “ Environmental
        Laws ”
means
        any federal, state, local or foreign law or regulation relating to the
        protection of the environment or health and safety including the Comprehensive
        Environmental Response, Compensation, and Liability Act (42 U.S.C.
§ 9601, et  seq .),
        the
        Hazardous Materials Transportation Act (49 U.S.C. § 1801, et  seq .),
        the
        Resource Conservation and Recovery Act (42 U.S.C. § 6901, et  seq .),
        the
        Federal Clean Water Act (33 U.S.C. § 1251 et  seq .),
        the
        Clean Air Act (42 U.S.C. § 7401 et  seq .),
        and
        the Toxic Substances Control Act (15 U.S.C. § 2601 et  seq .)
        and
        any other law, including common law, relating to the environment (including,
        without limitation, laws relating to the storage, generation, use, handling,
        manufacture, processing, labeling, advertising, sale, display, transportation,
        treatment, reuse, recycling, release and disposal of Hazardous Materials),
        as
        such laws may be amended or otherwise modified from time to time, and any
        other
        present or future federal, state, provincial, local or foreign statute,
        ordinance, rule, regulation, order, judgment, decree, permit, license or
        other
        binding determination (including the common law) of any Governmental Authority
        imposing liability or establishing standards of conduct for protection of
        the
        environment.
  “ Environmental
        Liabilities and Costs ”
means
        all liabilities, monetary obligations, Remedial Actions, losses, damages,
        punitive damages, consequential damages, treble damages, costs and expenses
        (including all reasonable fees, disbursements and expenses of counsel, experts
        and consultants and costs of investigations and feasibility studies), fines,
        penalties, sanctions and interest incurred as a result of any claim or demand
        by
        any Governmental Authority or any third party, and which relate to any
        environmental condition or a Release of Hazardous Materials from or onto
        (a) any property presently or formerly owned by the Borrowers or any of
        their Subsidiaries, or (b) any facility which received Hazardous Materials
        generated by the Borrowers or any of their Subsidiaries.
  13
  “ Environmental
        Lien ”
means
        any Lien in favor of any Governmental Authority for Environmental Liabilities
        and Costs or otherwise relating to any Environmental Law.
  “ Equipment ”
means,
        with respect to any Person, all of such Person’s now owned or hereafter acquired
        right, title, and interest with respect to equipment (including, without
        limitation, “ equipment ”
as
        such
        term is defined in Article 9 of the UCC), machinery, machine tools, motors,
        furniture, furnishings, fixtures, vehicles, tools, parts, goods (other than
        consumer goods, farm products, or Inventory), wherever located, including
        all
        attachments, accessories, accessions, replacements, substitutions, additions,
        and improvements to any of the foregoing.
  “ Equity
        Interests ”
means,
        with respect to any Person, shares of capital stock of (or other ownership
        or
        profit interests in) such Person, warrants, options or other rights for the
        purchase or other acquisition from such Person of shares of capital stock
        of (or
        other ownership or profit interests in) such Person, whether preferred or
        common
        and whether voting or nonvoting (or other ownership or profit interests in)
        such
        Person or warrants, rights or options for the purchase or other acquisition
        from
        such Person of such shares (or such other interests), and other ownership
        or
        profit interests in such Person (including, without limitation, partnership,
        member or trust units or interests therein), whether voting or nonvoting,
        and
        whether or not such shares, warrants, options, rights or other interests
        are
        authorized or otherwise existing on any date of determination.
  “ ERISA ”
means
        the Employee Retirement Income Security Act of 1974, as amended, and the
        regulations promulgated thereunder, in each case as in effect from time to
        time.
        References to sections of ERISA shall be construed also to refer to any
        successor sections.
  “ ERISA
        Affiliate ”
means,
        with respect to each Credit Party, any trade or business (whether or not
        incorporated) which is a member of a group of which such Credit Party is
        a
        member and which would be deemed to be a “ controlled
        group ”
within
        the meaning of Sections 414(b), (c), (m) and (o) of the Code.
  “ ERISA
        Event ”
means
        (a) a Reportable Event with respect to any Benefit Plan, (b) the
        filing of a notice of intent to terminate a Benefit Plan in a distress
        termination (as described in Section 4041(c) of ERISA), (c) the
        institution by the Pension Benefit Guaranty Corporation of proceedings to
        terminate a Benefit Plan or Multiemployer Plan, (d) the appointment of a
        trustee to administer any Benefit Plan under Section 4042 of ERISA, or
        (e) any event requiring the Borrowers or any ERISA Affiliate to provide
        security to a Benefit Plan under Section 401(a)(29) of the
        Code.
  “ Eurodollar
        Reserve Percentage ”
means,
        for any day, the percentage, expressed as a decimal and rounded upwards,
        if
        necessary, to the next higher 1/100 th of 1%,
        that is in effect for such day as prescribed by the Federal Reserve Board
        (or
        any successor) for determining the maximum reserve requirement (including
        any
        basic, supplemental or emergency reserves) in respect of Eurocurrency
        liabilities, as defined in Regulation D of such Board as in effect from time
        to
        time, or any similar category of liabilities for a member bank of the Federal
        Reserve System in The City of New York.
  14
  “ Event
        of Default ”
has
        the
        meaning ascribed to such term in SECTION
        11.01 .
  “ Excess
        Cash Flow ”
means,
        for any Fiscal Year, (a) Consolidated EBITDA of the Borrowers during such
        Fiscal Year plus ,
        (b) in
        each case to the extent deducted in the determination of Consolidated EBITDA
        (in
        each case, without duplication) non-cash charges deducted in calculating
        consolidated pretax net income of the Borrowers for such Fiscal Year minus (c) the sum of the following, in each case to the extent added in the
        determination of Consolidated EBITDA, (i) Capital Expenditures of the
        Borrowers during such Fiscal Year to the extent such Capital Expenditures
        are
        paid in cash (and not financed), (ii) the aggregate amount of all
        repayments of principal of the Term Loan Obligations made in cash during
        such
        Fiscal Year other than repayments pursuant to SECTION
        3.02(a) and SECTION
        3.02(c) of this
        Agreement and the Term Loan Obligations, (iii) cash interest payments, all
        fees and charges paid in connection with this Agreement and principal
        amortization payments on Indebtedness during such Fiscal Year, and (iv) the
        aggregate amount of cash Taxes paid by the Borrowers and their Subsidiaries
        on a
        consolidated basis during such Fiscal Year.
  “ Excluded
        Taxes ”
means,
        with respect to the Administrative Agent, the Collateral Agent, any Lender,
        or
        any other recipient of any payment to be made by or on account of any Obligation
        hereunder, taxes imposed on or measured by the overall net income (however
        denominated) of such recipient, franchise taxes (whether or not in lieu of
        net
        income taxes) and branch profits taxes, in each case imposed on such recipient,
        by a jurisdiction (or any political subdivision thereof) as a result of the
        recipient being organized or having its principal office or, in the case
        of any
        Lender, its applicable lending office in such jurisdiction.
  “ Existing
        Debt ”
means
        Indebtedness of the Borrowers and their Subsidiaries listed on Schedule
        E-1 .
  “ Extraordinary
        Receipts ”
means
        any cash received by any of the Credit Parties outside the ordinary course
        of
        business, which cash is not included in the calculation of Excess Cash Flow,
        including without limitation, returns on capital investments, insurance proceeds
        from key man life or other insurance, foreign, federal, state or local tax
        refunds, pension plan reversions, and judgments or settlements or other
        consideration received in connection with any claim or cause of action,
        indemnity and reimbursement payments and any release of funds from an escrow
        or
        similar arrangement, in each case, net of applicable taxes and expenses; provided  that Extraordinary Receipts shall not include (a) Net Cash Proceeds or Net
        Casualty/Condemnation Proceeds which are subject to SECTION
        3.02(a) and
        (b) Net Offering Proceeds and proceeds from the issuance or incurrence of
        Indebtedness.
  “ Federal
        Funds Rate ”
means,
        for any period, a fluctuating interest rate equal for each day during such
        period to the weighted average of the rates on overnight Federal Funds
        transactions with members of the Federal Reserve System arranged by Federal
        Funds brokers, as published for such day (or, if such day is not a Business
        Day,
        for the next preceding Business Day) by the Federal Reserve Bank of New York,
        or, if such rate is not so published for any day which is a Business Day,
        the
        average of the quotations for such day on such transactions received by the
        Administrative Agent from three Federal Funds brokers of recognized standing
        selected by the Administrative Agent in the exercised of its
        discretion.
  15
  “ Federal
        Reserve Board ”
or
        the
“ Board ”
means
        the Board of the Federal Reserve System or any Governmental Authority succeeding
        to its functions.
  “ Field
        Examination ”
has
        the
        meaning set forth in SECTION
        8.04(b) .
  “ Fiscal
        Month ”
means
        each calendar month.
  “ Fiscal
        Quarter ”
means
        the calendar quarter ending on each March 31, June 30, September 30 and December
        31 of any Fiscal Year.
  “ Fiscal
        Year ”
means
        the fiscal year of the Borrowers ending on December 31.
  “ Foreign
        Subsidiary ”
means
        a
        Subsidiary other than a Domestic Subsidiary.
  “ Forfeiture
        Proceeding ”
means
        any action, proceeding or investigation affecting a Credit Party before any
        court, governmental department, commission, board, bureau, agency or
        instrumentality, domestic or foreign, or the receipt of notice by any such
        party
        that any of them is a suspect in or a target of any governmental inquiry
        or
        investigation which may result in an indictment of any of them or the seizure
        or
        forfeiture of any of their respective properties.
  “ Fraudulent
        Transfer Laws ”
has
        the
        meaning ascribed to such term in SECTION
        12.14 .
  “ Fund ”
means
        any Person that is (or will be) engaged in making, purchasing, holding or
        otherwise investing in commercial loans and similar extensions of
        credit.
  “ Funding
        Date ”
means,
        with respect to any Loan, the date upon which the amount of such Loan is
        advanced to the Borrowers and, with respect to any Letter of Credit, the
        date
        upon which such Letter of Credit is issued for the account of the
        Borrowers.
  “ GAAP ”
means
        generally accepted accounting principles in effect from time to time in the
        United States, provided  that ,
        for the
        purpose of the financial amounts and the definitions used herein, “ GAAP ”
shall
        mean generally accepted accounting principles in effect on the date hereof
        and
        consistent with those used in the preparation of the 2005 Financial Statements,
        and provided  further that, if
        there occurs after the date of this Agreement any change in GAAP that affects
        in
        any material respect the calculation of any financial covenant contained
        in ARTICLE
        X ,
        the
        Administrative Agent and the Borrowers shall negotiate in good faith an
        amendment to such financial covenant and any other provision of this Agreement
        that relates to the calculation of such financial covenant with the intent
        of
        having the respective positions of the Lenders and the Borrowers after such
        change in GAAP conform as nearly as possible to their respective positions
        as of
        the date of this Agreement and, after the execution of any such amendment
        or
        consent by the Required Lenders in connection with any such change in GAAP,
        “ GAAP ”
shall
        mean generally accepted accounting principles in effect on the Closing Date
        of
        such amendment or consent. Until any such amendments have been agreed upon,
        the
        covenants in ARTICLE
        X shall be
        calculated as if no such change in GAAP has occurred.
  16
  “ GE ”
means
        General Electric Capital Corporation, a Delaware corporation.
  “ Governing
        Documents ”
means
        (a) with respect to any corporation, (i) the articles/certificate of
        incorporation (or the equivalent organizational documents) of such corporation,
        (ii) the by-laws (or the equivalent governing documents) of the corporation
        and (iii) any document setting forth the designation, amount and/or
        relative rights, limitations and preferences of any class or series of such
        corporation’s capital stock; (b) with respect to any general partnership,
        (i) the partnership agreement (or the equivalent organizational documents)
        of such partnership, and (ii) any document setting forth the designation,
        amount and/or relative rights, limitations and preferences of any of the
        partnership interests; (c) with respect to any limited partnership,
        (i) the partnership agreement (or the equivalent organizational documents)
        of such partnership, (ii) a certificate of limited partnership (or the
        equivalent organizational documents), and (iii) any document setting forth
        the designation, amount and/or relative rights, limitations and preferences
        of
        any of the partnership interests; (d) with respect to any limited liability
        company, (i) the certificate of limited liability (or equivalent filings)
        of such limited liability company, (ii) the operating agreement (or the
        equivalent organizational documents) of such limited liability company, and
        (iii) any document setting forth the designation, amount and/or relative
        rights, limitations and preferences of any of such company’s membership
        interests; and (e) with respect to any unlimited liability company,
        (i) the certificate of incorporation (or the equivalent organizational
        documents) of such unlimited liability company, (ii) the memorandum and
        articles of association (or the equivalent governing documents) of such
        unlimited liability company, and (iii) any document setting forth the
        designation, amount and/or relative rights, limitations and preferences of
        any
        class or series of such unlimited liability company’s capital stock; including,
        in each case, all agreements and other documents establishing voting limitations
        and rights, puts, calls, options and other arrangements among holders of
        Equity
        Interests in such corporation, partnership or company.
  “ Governmental
        Authority ”
means
        any nation or government, any federal, state, provincial, city, town, municipal,
        county, local or other political subdivision thereof or thereto and any
        department, commission, board, bureau, instrumentality, agency or other entity
        exercising executive, legislative, judicial, taxing, regulatory or
        administrative powers or functions of or pertaining to government.
  “ Grantor ”
has
        the
        meaning ascribed to such term in the Security Agreement.
  “ Guaranteed
        Obligations ”
has
        the
        meaning ascribed to such term in SECTION
        12.01 .
  “ Guarantors ”
means
        the guarantors signatory hereto, the Borrowers’ current Wholly Owned
        Subsidiaries and each of the Borrowers’ future Subsidiaries that is required to
        become a Guarantor hereunder from time to time.
  “ Guaranty ”
means
        the guaranty of each of the Guarantors pursuant to ARTICLE
        XII .
  17
  “ Hazardous
        Materials ”
means
        (a) any element, compound or chemical that is regulated under any
        Environmental Law including any substance that is defined, listed or otherwise
        classified as a contaminant, pollutant, toxic pollutant, toxic or hazardous
        substance, extremely hazardous substance or chemical, hazardous waste, special
        waste, or solid waste under Environmental Laws; (b) petroleum and its
        refined products; (c) polychlorinated biphenyls; (d) any waste
        exhibiting a hazardous characteristic, including, but not limited to,
        corrosivity, ignitability, toxicity or reactivity as well as any radioactive
        or
        explosive materials; and (e) friable asbestos-containing
        materials.
  “ Highest
        Lawful Rate ”
has
        the
        meaning ascribed to such term in SECTION
        4.01(c) .
  “ Indebtedness ”
means,
        without duplication, with respect to any Person, (a) all indebtedness of
        such Person for borrowed money; (b) all obligations of such Person for the
        deferred purchase price of property or services (other than trade payables
        incurred in the ordinary course of business irrespective of when paid);
        (c) all obligations of such Person evidenced by bonds, debentures, notes or
        other similar instruments; (d) all obligations and liabilities of such
        Person created or arising under any conditional sales or other title retention
        agreement with respect to property used and/or acquired by such Person, even
        if
        the rights and remedies of the lessor, seller and/or lender thereunder are
        limited to repossession or sale of such property; (e) all Capitalized Lease
        Obligations of such Person; (f) all obligations and liabilities of such
        Person as an account party, in respect of letters of credit, bankers’
acceptances and similar facilities; (g) all the aggregate mark-to-market
        exposure of such Person under hedging agreements; (h) all Contingent
        Obligations; and (i) all obligations referred to in clauses (a) through (h) of this
        definition of another Person secured by (or for which the holder of such
        Indebtedness has an existing right, contingent or otherwise, to be secured
        by) a
        Lien upon property owned by such Person, even though such Person has not
        assumed
        or become liable for the payment of such Indebtedness, provided  that the
        amount of Indebtedness of others that constitutes Indebtedness solely by
        reason
        of this clause (i) shall
        not for purposes of this Agreement exceed the fair market value of the
        properties or assets subject to such Lien. The Indebtedness of any Person
        shall
        include the Indebtedness of any partnership of or joint venture in which
        such
        Person is a general partner or a joint venturer that is required to be
        consolidated under GAAP to the extent such Person would be liable therefor
        under
        Applicable Law or any agreement or instrument by virtue of such Person’s
        ownership interest in or other relationship with such entity, except to the
        extent the terms of such Indebtedness provide that such Person shall not
        be
        liable therefor.
  “ Indemnified
        Matters ”
has
        the
        meaning ascribed to such term in SECTION
        14.19 .
  “ Indemnitees ”
has
        the
        meaning ascribed to such term in SECTION
        14.19 .
  “ Indenture ”
means
        that certain Indenture dated as of May 31, 2005 between James River Coal
        Company
        and U.S. Bank National Association, as Trustee for 9.375% Senior Notes due
        2012.
  “ Indenture
        Reserve ”
means
        (without duplication) (a) $225,000 as of the Closing Date plus (b) the amount
        of
        (i) any Indebtedness outstanding under clause (c) or clause (i) of the
        definition of Permitted Indebtedness and (ii) any other Indebtedness (as
        that
        term is defined in the Indenture) that is permitted under Section 4.03(a)(10)
        of
        the Indenture.
  18
  “ Intellectual
        Property ”
means
        all (a) Trademarks; (b) Patents and other inventions and discoveries,
        whether patentable or not, and all patents, registrations, invention disclosures
        and applications therefor, including divisions, continuations,
        continuations-in-part and renewal applications, and including renewals,
        extensions and reissues; (c) Trade Secrets; (d) Copyrights published
        and unpublished works of authorship, whether copyrightable or not (including
        without limitation customer lists, software, databases and other compilations
        of
        information), copyrights therein and thereto, and registrations and applications
        therefor, and all renewals, extensions, restorations and reversions thereof;
        and
        (e) all domain names, other intellectual property and proprietary
        rights.
  “ Intercreditor
        Agreement ”
means
        an intercreditor agreement between the Administrative Agent and the Term
        Loan
        Agent executed and delivered as of the Closing Date.
  “ Interest
        Payment Date ”
means
        (a) with respect to (i) any Base Rate Loan, monthly in arrears on the last
        Business Day of each calendar month, commencing on the first such date to
        occur
        after the Closing Date and the Maturity Date; and (ii) any LIBOR Rate Loan,
        the
        last day of each LIBOR Period applicable to such Loan; provided ,
        in the
        case of each LIBOR Period of longer than three months, “Interest Payment Date”
shall also include each date that is three months, or an integral multiple
        thereof, after the commencement of such LIBOR Period, (b) with respect to
        the amount of any Loan prepaid, the date of such prepayment, and (c) with
        respect to all Loans, the Maturity Date.
  “ Interest
        Rate ”
means
        interest at a rate equal to either (i) the Base Rate plus the Applicable
        Margin,
        or (ii) the LIBOR plus the Applicable Margin.
  “ Interest
        Rate Determination Date ”
means,
        for each LIBOR Period, the second Business Day immediately preceding the
        first
        day of such LIBOR Period.
  “ Inventory ”
means
        all Credit Parties’ now owned or hereafter acquired right, title, and interest
        with respect to all “ inventory ”
as
        defined in Article 9 of the UCC; providedthat “Inventory”
        shall not include coal, minerals or other Inventory that has not yet been
        extracted to the surface or otherwise is still underground.
  “ Investment ”
means,
        with respect to any Person, (a) any purchase or other acquisition by that
        Person of Securities, or of a beneficial interest in Securities, issued by
        any
        other Person; (b) any purchase by that Person of all or substantially all
        of the assets of a business conducted by another Person; (c) any joint
        venture; and (d) any direct or indirect loan, advance (other than prepaid
        expenses, accounts receivable, advances and other loans to employees including,
        without limitation, employee forgivable loans and similar items made or incurred
        in the ordinary course of business) or capital contribution by that Person
        to
        any other Person, including all Indebtedness owing to such Person arising
        from a
        sale of any property or assets by such Person other than in the ordinary
        course
        of its business.
  “ IRS ”
means
        the Internal Revenue Service or any successor federal tax Governmental
        Authority.
  19
  “ JRCC ”
has
        the
        meaning ascribed to such term in the introductory paragraph of this
        Agreement.
  “ KRP ”
means
        Kentucky River Properties, LLC and its affiliates.
  “ L/C
        Issuer ”
means
        GE Capital Financial, Inc., or one of its Affiliates, or any other Person
        designated by the Administrative Agent and reasonably acceptable to the
        Administrative Borrower.
  “ L/C
        Sublimit ”
has
        the
        meaning set forth in clause (a) of Annex A.
  “ Lease ”
means
        any lease, tenancy, subtenancy, license, franchise, concession or other use
        or
        occupancy agreement, whether written or oral, and any and all extensions,
        renewals or other modifications thereof, including all oil, gas, coal and
        other
        minerals leases, surface leases or easements, subleases, licenses, concessions,
        operating rights or other agreements (written or verbal, now or hereafter
        in
        effect) which grant a possessory interest in and to, or the right to explore,
        use, lease, license, possess, produce, process, store or transport oil, gas,
        coal or other minerals from, operate from, or otherwise enjoy, any property
        or
        any interest therein, together with all amendments, modifications, extensions
        and renewals thereof (and “ landlord ”
means
        the landlord, sublandlord, lessor, sublessor, franchisor or other grantor
        of a
        right of use or occupancy under a Lease and any guarantor of its obligations
        thereunder; and “ tenant ”
means
        the tenant, subtenant, lessee, sublessee, licensee, franchisee, concessionaire
        or other occupant under a Lease and any guarantor of its obligations
        thereunder).
  “ Leasehold
        Property ”
means
        any property or interest of any Credit Party held under any Lease of real
        property.
  “ Lender ”
means
        a
        lender that has a Commitment and/or that has an outstanding Revolving Advance
        or
        Loan, including the lenders identified on the signature pages hereof, together
        with their respective successors and permitted assigns, collectively the
        “Lenders”.
  “ Lender
        Expenses ”
has
        the
        meaning ascribed to such term in SECTION
        14.05 .
  “ Lender-Related
        Persons ”
means,
        with respect to any Lender, such Lender, together with such Lender’s Affiliates,
        and the officers, directors, employees, counsel, advisors, agents, and
        attorneys-in-fact of such Lender and such Lender’s Affiliates.
  “ Letter
        of Credit ”
means
        a
        letter of credit issued by any L/C Issuer (or its designee) or a Person approved
        by the Administrative Agent; provided , however ,
        the
        term shall not include any Term Letters of Credit issued pursuant to the
        Term
        Credit Agreement and provided, further,
        that the aggregate face amount of all Letters of Credit shall not exceed
        the L/C
        Sublimit.
  “ Letter
        of Credit Usage ”
means
        an amount equal to the face amount of all outstanding Letters of Credit plus
        the
        aggregate amount of any unpaid reimbursement obligations in respect of Letters
        of Credit and all other outstanding obligations incurred by the Administrative
        Agent, Lenders and the L/C Issuer, whether direct or indirect, contingent
        or
        otherwise, due or not due, in connection with the issuance of Letters of
        Credit
        by the L/C Issuer or the purchase of a participation as set forth in Annex
        A
        with respect to any Letter of Credit. Letter of Credit Usage shall equal
        the
        maximum amount that may be payable by the L/C Issuer, Administrative Agent
        or
        Lenders thereupon or pursuant thereto.
  20
  “ Leverage
        Ratio ”
“
        means, as of any date of determination (a) the amount of Senior Funded
        Indebtedness as of such date, divided by
        (b) the amount of Consolidated EBITDA of the Borrowers and their
        Subsidiaries for the twelve (12) month period most recently ended prior to
        that
        date; provided that, notwithstanding anything contained herein to the contrary,
        for purposes of calculating the Leverage Ratio for the fiscal quarter ending
        as
        of (i) June 30, 2007, the amount of Consolidated EBITDA required in clause
        (b)
        of this definition shall be determined by taking the amount of Consolidated
        EBITDA for the six months ended as of June 30, 2007 and multiplying that
        amount
        by two (i.e. 6 months Consolidated EBITDA times 2); and
        (ii) September 30, 2007, the amount of Consolidated EBITDA required in clause
        (b) of this definition shall be determined by taking the amount of Consolidated
        EBITDA for the nine months ended as of September 30, 2007, multiplying that
        amount by four and dividing the result by three (i.e. 9 months Consolidated
        EBITDA times 4/3).
  “ LIBOR ”
means,
        with respect to each LIBOR Period in respect of any LIBOR Rate Loan, the
        rate
        per annum determined by the Administrative Agent to be the offered rate for
        deposits in Dollars for a period equal to the LIBOR Period for such LIBOR
        Period
        therefore appearing on the Dow Jones Markets Telerate Page 3750 as of
        11:00 a.m., London time, on the relevant Interest Rate Determination Date
        with respect to such LIBOR Period. If for any reason, such rate is not
        available, then the term “ LIBOR ”
shall
        mean, with respect to the LIBOR Period, the rate per annum (rounded upwards,
        if
        necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO page
        (or
        any successor page) as the London interbank offered rate for deposits in
        Dollars
        as of approximately 11:00 a.m., London time, on the relevant Interest Rate
        Determination Date for a term comparable to the relevant LIBOR Period; provided  that ,
        if more
        than one rate is specified on such Reuters Screen LIBO page, the applicable
        rate
        shall be the arithmetic mean of all such rates (rounded upwards, if necessary,
        to the nearest 1/100 of 1%). If, for any reason, no such rate is provided
        for a
        term comparable to the relevant LIBOR Period, but shall be provided for a
        shorter and a longer term, then such rate shall be linearly interpolated
        by the
        Administrative Agent (which calculation shall be conclusive in the absence
        of
        manifest error). In the event that no such rate can be obtained by any of
        the
        above means, then the LIBOR Rate for the relevant LIBOR Period for the purposes
        of this definition shall mean the rate per annum at which, as determined
        by the
        Administrative Agent, Dollars in an amount comparable to the Loans then
        requested are being offered to leading banks at approximately 11:00 a.m.,
        London
        time, on the relevant Interest Rate Determination Date for settlement in
        immediately available funds by leading banks in the London interbank market
        for
        a period equal to the relevant LIBOR Period.
 21
 “ LIBOR
        Period ”
means,
        with respect to any LIBOR Rate Loan, the period of one, two, three or six
        months, as specified by the Administrative Borrower in the applicable Borrowing
        Request or in a Notice of Conversion/Continuation and commencing on the date
        of
        the making of such LIBOR Rate Loan (or the continuation of a LIBOR Rate Loan
        or
        the conversion of a Base Rate Loan to a LIBOR Rate Loan) and ending one,
        two,
        three or six months thereafter; and provided that the
        foregoing provisions are subject to the following:
  (o) if
        any
        LIBOR Period pertaining to a LIBOR Rate Loan would otherwise end on a day
        that
        is not a Business Day, such LIBOR Period shall be extended to the next
        succeeding Business Day unless the result of such extension would be to carry
        such LIBOR Period into another calendar month, in which event such LIBOR
        Period
        shall end on the immediately preceding Business Day;
  (p) any
        LIBOR
        Period pertaining to a LIBOR Rate Loan that begins on the last Business Day
        of a
        calendar month (or on a day for which there is no numerically corresponding
        day
        in the calendar month at the end of such LIBOR Period) shall end on the last
        Business Day of the relevant calendar month; and
  (q) any
        LIBOR
        Period in respect of any Loan that would otherwise extend beyond the Maturity
        Date shall end on the Maturity Date.
  “ LIBOR
        Rate ”
means
        a
        rate per annum (rounded upwards, if necessary, to the next higher
        1/100 th of 1%)
        determined by the Administrative Agent pursuant to the following formula:
        LIBOR/(1.00 - Eurodollar Reserve Percentage as of the Interest Rate
        Determination Date).
  “ LIBOR
        Rate Loans ”
means
        Loans which bear interest at a rate determined by reference to the LIBOR
        Rate.
  “ Lien ”
means
        any lien, security interest or other encumbrance or charge of any kind, or
        any
        other type of preferential arrangement intended to have the effect of a lien
        or
        security interest, including, without limitation, the lien or retained security
        title of a conditional vendor and any easement, right of way or other
        encumbrance on title to real property.
  “ Loan ”
means
        each Revolving Advance or other extension of credit under this
        Agreement.
  “ Loan
        Account ”
has
        the
        meaning ascribed to such term in SECTION
        2.08 .
  “ Loan
        Documents ”
means
        this Agreement, the Notes, the Security Documents, and all other agreements,
        instruments, and other documents executed and delivered by any Credit Party
        pursuant hereto or thereto or otherwise evidencing or securing any Loan,
        in each
        case.
  “ Loan
        Exposure ”
means,
        with respect to any Lender, as of any date of determination (a) prior to
        the funding of the Loans, such Lender’s Commitment, and (b) after the
        funding of the Loans, the such Lender’s Pro Rata Share of the Aggregate Revolver
        Exposure.
  “ Material
        Adverse Effect ”
means
        a
        material adverse effect on (a) the business, operations, properties,
        assets, or condition (financial or otherwise) of the Credit Parties taken
        as a
        whole, (b) the ability of the Credit Parties to perform their obligations
        hereunder or under any of the other Loan Documents, or (c) the rights or
        remedies of the Administrative Agent, Collateral Agent or any Lender hereunder
        or under any other Loan Document.
  “ Material
        Contract ”
means
        (a) each of those contracts, Leases, Mining Leases or other agreements
        listed on Schedule M-1 hereto
        and (b) any contract, Lease, Mining Lease, or other agreement (or any
        combination of any of the foregoing which are contractually related or
        cross-defaulted with each other or under any Loan Document) (i) pursuant
        to
        which any Credit Party is or may be obligated to pay or entitled to receive
        an
        amount equal to or greater than, (ii) the value of which, based on the
        reasonably estimated fair market value thereof or of the assets underlying
        the
        same, or (iii) in the case of any Mining Lease(s), the average production
        under
        which is reasonably expected to have a fair market value of (in each case
        under
        the foregoing clauses (i), (ii) and (iii)), $25,000,000 per annum or such
        lesser
        amount as may constitute 5% of the revenue of the Borrowers and their
        Subsidiaries for the twelve months ended on the financial statements most
        recently delivered under SECTION
        7.01(a) .
  22
  “ Maturity
        Date ”
means
        February 26, 2012, or such earlier date as the Obligations may become due
        and
        payable pursuant to the terms of this Agreement, whether by acceleration
        or
        otherwise.
  “ Maximum
        Revolver Amount ”
means
        $35,000,000.
  “ Mine ”
means
        any excavation or opening into the earth now and hereafter made from which
        coal
        or other minerals are or can be extracted on or from any of the properties
        owned
        or leased by a Borrower or any Subsidiary of a Borrower, together with all
        appurtenances, fixtures, structures, improvements and assets in connection
        therewith.
  “ Mining
        Law ”
means
        all treaties, laws, rules, regulations, codes, ordinances, orders, decrees,
        judgments, injunctions, notices or binding agreements issued, promulgated
        or
        entered into by any Governmental Authority, relating in any way to mining
        operations and activities, including the Federal Coal Leasing Amendments
        Act,
        the Surface Mining Control and Reclamation Act, the Federal Coal Mine Health
        and
        Safety Act, the Black Lung Act and the Coal Act, in each case as
        amended.
  “ Mining
        Lease ”
means
        a
        Lease, easement, right of access or other agreement pursuant to which a Borrower
        or any Subsidiary of a Borrower has rights with respect to coal reserves
        or the
        right to mine or extract coal or other minerals from the ground.
  “ Mining
        Permits ”
means
        any and all permits, licenses, registrations, notifications, exemptions,
        contracts and any other authorization or right required under any applicable
        Mining Law or otherwise necessary to recover coal from any Mine being operated
        by the Borrowers or any Subsidiary of a Borrower.
  “ Morgan
        Stanley ”
means
        Morgan Stanley Senior Funding, Inc., a Delaware corporation.
  “ Mortgage ”
means
        a
        mortgage, deed of trust and/or assessment and other similar security instrument
        with respect to Real Estate Assets executed and delivered by a Credit Party
        in
        favor of the Collateral Agent, in form and substance reasonably satisfactory
        to
        the Collateral Agent, as the same may be amended, modified and otherwise
        supplemented from time to time.
  “ Mortgaged
        Property ”
means
        each parcel of real property and the improvements thereto as set forth as
        of the
        Closing Date on Schedule
        M-2 and any
        other such property which becomes subject to a Mortgage granted in connection
        with this Agreement.
  23
  “ Multiemployer
        Plan ”
means
        a
“ multiemployer
        plan ”
as
        defined in Section 4001(a)(3) of ERISA to which the Credit Parties or any
        of their ERISA Affiliates has contributed, or has been obligated to contribute,
        at any time during the preceding six years, or has liability.
  “ Net
        Cash Proceeds ”
means
        all cash and Cash Equivalents received by a Credit Party or any Wholly-Owned
        Subsidiary from time to time in connection with a Disposition (whether as
        initial consideration or through the payment of deferred consideration) other
        than a Disposition permitted under SECTION
        9.04 ,
        after
        deducting therefrom only (a) the principal amount of any Indebtedness of
        such Credit Party secured by any Permitted Encumbrance on any asset that
        is the
        subject of the Disposition (other than Indebtedness assumed by the purchaser
        of
        such asset) which is required to be, and is, repaid in connection with such
        Disposition (other than Indebtedness under this Agreement), (b) reasonable
        fees and expenses related thereto reasonably incurred by such Credit Party
        in
        connection therewith, and (c) a provision for any Taxes to be paid or
        reasonably estimated to be payable, in connection with such Disposition (after
        taking into account any tax credits or deductions and any tax sharing
        arrangements).
  “ Net
        Casualty/Condemnation Proceeds ”
means,
        with respect to any Casualty or Condemnation, the amount of any insurance
        proceeds or condemnation awards received by a Credit Party from time to time
        in
        connection with such Casualty or Condemnation, but excluding any proceeds
        or
        awards required to be paid to a creditor (other than the Lenders) which holds
        a
        first-priority Lien permitted pursuant to this Agreement on the property
        which
        is subject of such Casualty or Condemnation after deducting therefrom only
        (a) a reserve for any Taxes to be paid or estimated by the applicable
        Credit Party to be paid as a result of such Casualty or Condemnation, and
        (b) to the extent not excluded above, payments to retire Indebtedness where
        payment of such Indebtedness is required in connection with such Casualty
        or
        Condemnation.
  “ Net
        Income ”
means,
        with respect to any Person for any period, the net income (loss) of such
        Person
        and its consolidated Subsidiaries for such period, determined on a consolidated
        basis in accordance with GAAP.
  “ Net
        Interest Expense ”
means,
        with respect to any Person for any period, interest expense of such Person
        and
        its consolidated Subsidiaries for such period (after the elimination of
        intercompany items) determined on a consolidated basis in conformity with
        GAAP less the
        interest income for such period, determined on a consolidated basis in
        accordance with GAAP for such Person and its consolidated
        Subsidiaries.
  “ Net
        Orderly Liquidation Value ”
means,
        with respect to any category of Inventory, the estimated net recovery value
        (expressed as a percentage of the cost of such Inventory) as determined by
        Administrative Agent based on the most recent appraisal report prepared by
        an
        appraiser acceptable to Administrative Agent which reflects the net cash
        value
        expected by such appraiser to be derived from a sale or disposition at a
        liquidation or going-out-of-business sale of such Inventory after deducting
        all
        costs, expenses and fees attributable to such sale or disposition, including,
        without limitation, all fees, costs, and expenses of any attorneys, appraisers,
        auctioneers and liquidators engaged to conduct such sale or disposition,
        all
        costs and expenses of removing and delivering the same to purchasers, and
        the
        costs and expenses of operating Borrowers’ businesses and securing the
        Collateral during the pendency of the liquidation process.
  24
  “ Non-Consenting
        Lender ”
has
        the
        meaning ascribed to such term in SECTION
        14.03(a) .
  “ Non-U.S.
        Lender ”
has
        the
        meaning ascribed to such term in SECTION 3.04(e)(i).
  “ Note ”
means
        a
        promissory note in substantially the form attached as Exhibit N-1 payable
        to a Lender pursuant to SECTION
        2.05 .
  “ Notice
        of Conversion/Continuation ”
means
        a
        notice substantially in the form of Exhibit
        N-2 attached
        hereto and made a part hereof.
  “ Notice
        of Default ”
has
        the
        meaning ascribed to such term in SECTION
        13.03 .
  “ NYMEX ”
means
        the New York Mercantile Exchange.
  “ Obligations ”
means
        all Loans, Lender Expenses, advances, debts, liabilities, fees, interest,
        obligations, covenants and duties, owing by any Credit Party to the
        Administrative Agent, the Collateral Agent, any L/C Issuer, any Lender, any
        Affiliate of any Lender, or any Person entitled to indemnification pursuant
        to SECTION
        14.19 of this
        Agreement, of any kind or nature, present or future, whether or not evidenced
        by
        any note, guaranty or other instrument, whether or not for the payment of
        money,
        whether arising by reason of an extension of credit, loan, guaranty,
        indemnification, interest rate contract, foreign exchange contract or in
        any
        other manner, whether direct or indirect (including those acquired by
        assignment), absolute or contingent, due or to become due, but in all such
        circumstances only to the extent now existing or hereafter arising or however
        acquired, arising under or in connection with this Agreement, the Notes,
        any
        other Loan Document or any application or documentation of any L/C Issuer
        in
        connection with the issuance of a Letter of Credit. The term includes all
        interest (including any interest that, but for the provisions of the Bankruptcy
        Code, would have accrued), charges, expenses, fees, attorneys’ fees and
        disbursements, Lender Expenses and any other sum chargeable to the Credit
        Parties under this Agreement, the Notes, or any other Loan
        Document.
  “ Officer’s
        Certificate ”
has
        the
        meaning ascribed to such term in SECTION
        7.01(d) .
  “ Office
        Lease ”
means
        any space Lease solely for an office or any other administrative operations,
        but
        specifically excluding all Mining Leases and Prep Plant Leases.
  “ Operating
        Lease ”
means,
        as applied to any Person, any lease (including leases that may be terminated
        by
        the lessee at any time) of any property (whether real, personal or mixed)
        that
        is not a Capitalized Lease, other than any such lease under which that Person
        is
        the lessor.
  “ Other
        Lender ”
has
        the
        meaning ascribed to such term in SECTION 14.03(b).
  25
  “ Other
        Taxes ”
has
        the
        meaning ascribed to such term in SECTION
        3.04(b) .
  “ Participant ”
has
        the
        meaning ascribed to such term in SECTION
        14.10(e) .
  “ Patents ”
means
        all of the following in which any Person now holds or hereafter acquires
        any
        interest: (a) all letters patent of the United States or any other country,
        all
        registrations and recordings thereof, all applications for letters patent
        of the
        United States or any other country, including registrations, recordings and
        applications in the United States Patent and Trademark Office or in any similar
        office or agency of the United States, any State or Territory thereof, or
        any
        other country and all patentable inventions and improvements described and
        claimed in any of the foregoing, (b) all reissues, continuations,
        continuations-in-part, divisions, renewals, or extensions thereof and all
        amendments and supplements thereto and improvements thereon, (c) all patent
        licenses held by any Credit Party and (d) including in the case of each of
        (a),
        (b) and (c), all rights corresponding thereto in the United States and in
        every
        other country, including the right to make, use, lease, license, sell and
        otherwise transfer the technology or inventions disclosed therein, all income
        and proceeds thereof and all license royalties and proceeds of infringement
        suits.
  “ Patriot
        Act ”
means
        the Uniting and Strengthening America by Providing Appropriate Tools Required
        to
        Intercept and Obstruct Terrorism Act of 2001, Title III of Pub. L. No. 107-56
        (signed into law October 26, 2001).
  “ PBGC ”
has
        the
        meaning ascribed to such term in SECTION
        6.01(i) .
  “ Permits ”
has
        the
        meaning ascribed to such term in SECTION
        6.01(l) .
  “ Permitted
        Acquisition ”
means
        acquisitions satisfying all of the following conditions:
  (r) one
        or
        more acquisitions for a purchase price not exceeding $25,000,000 in the
        aggregate for all such acquisitions (including the amount of any Indebtedness
        assumed as part of any such acquisition), consummated by or through the
        Borrowers or any of their Subsidiaries (including any newly formed Subsidiary
        of
        a Borrower), of a Person engaged in substantially the same general line of
        business or businesses as those in which the Borrowers or any of their
        Subsidiaries is engaged or businesses reasonably related thereto;
  (s) such
        acquisition shall be consensual and shall have been approved by the board
        of
        directors (or similar governing body) of the Person whose Equity Interests
        or
        assets are proposed to be acquired and shall not have been preceded by an
        unsolicited tender offer for such Equity Interests by, or proxy contest
        initiated by, a Borrower or any Subsidiary of such Borrower;
  (t) the
        Administrative Borrower provides Agent with prior notice (which notice shall
        not
        be less than 10 days prior to the closing date of such acquisition) of such
        acquisition and a draft of the proposed acquisition agreement;
  (u) the
        Administrative Borrower delivers a pro forma compliance certificate, prepared
        on
        a pro forma basis after giving effect to the proposed acquisition or
        acquisitions, demonstrating compliance with this Agreement and that the Leverage
        Ratio immediately after giving effect to the acquisition or acquisitions
        is
        equal to or less than the Leverage Ratio for the Borrowers and their
        subsidiaries without the acquired entity, business or assets immediately
        prior
        thereto;
  26
  (v) the
        aggregate amount of EBITDA for the last 12 consecutive month period of each
        such
        Person (or each such business or assets) being acquired is not less than
        $1 as
        of the month most recently ended prior to the date of such
        Acquisition;
  (w) an
        Authorized Officer of the Administrative Borrower shall have delivered a
        certificate attesting to the Solvency of the Borrowers and their Subsidiaries
        taken as a whole, including the acquired entity, business or assets, after
        giving effect to the acquisition;
  (x) the
        Administrative Borrower shall deliver updated disclosure schedules to this
        Agreement and to each of the other Loan Documents, as applicable;
  (y) any
        Indebtedness or Liens assumed in connection with each such acquisition are
        otherwise permitted under SECTION
        9.02 or SECTION
        9.032 ,
        respectively; and
  (z) no
        Default or Event of Default shall exist immediately prior to or shall have
        occurred and be continuing or would result from the consummation of the proposed
        acquisition or acquisitions.
  “ Permitted
        Encumbrances ”
        means:
  (aa) Liens
        imposed by law for unpaid utilities and taxes, assessments or governmental
        charges or levies that are not yet due or are being contested in a Permitted
        Protest;
  (bb) landlords’,
        carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like
        Liens imposed by law, arising in the ordinary course of business and securing
        obligations that are not overdue or are being contested in a Permitted
        Protest;
  (cc) deposits
        of cash made in the ordinary course of business in compliance with workers’
compensation, unemployment insurance and other social security or employment
        laws or regulations or similar legislation or to secure public, statutory
        or
        regulatory obligations;
  (dd) deposits
        of cash to secure the performance of bids, trade contracts, utility services,
        government contracts, statutory or regulatory obligations, surety and appeal
        bonds, performance bonds and other obligations of a like nature, in each
        case in
        the ordinary course of business;
  (ee) deposits
        of cash required under Leases that were entered into in the ordinary course
        of
        business and that are not prohibited hereunder;
  (ff) easements,
        zoning restrictions, rights-of-way and similar encumbrances on real property
        imposed by law or arising in the ordinary course of business that do not
        secure
        any monetary obligations and which individually or in the aggregate do not
        have
        a Material Adverse Effect;
  27
  (gg) Liens
        existing on the Closing Date and listed on Schedule P-1 hereto
        and, if the Indebtedness secured by such Lien is refinanced pursuant to a
        Permitted Refinancing, any Lien securing the Permitted Refinancing of such
        Indebtedness, provided  that such
        Lien securing Indebtedness under a Permitted Refinancing does not extend
        to or
        cover any property or asset of any Credit Party not subject to the Lien on
        the
        Closing Date and listed on Schedule P-1 ;
  (hh) Liens
        securing the Obligations and/or created by the Security Documents;
  (ii) any
        interest or title of a lessor, sublessor, licensee or licensor under any
        operating lease or license agreement entered into in the ordinary course
        of
        business and which does not, individually or in the aggregate, have a Material
        Adverse Effect;
  (jj) Liens
        securing Indebtedness described in clause
        (c) of the
        definition of “ Permitted
        Indebtedness ”;
        and
  (kk) Liens
        in
        favor of the collateral agent under the Term Credit Agreement that are subject
        to the Intercreditor Agreement.
  “ Permitted
        Indebtedness ”
        means:
  (ll) the
        Indebtedness listed on Schedule
        P-2 and
        extensions, renewals and replacements thereof;
  (mm) Indebtedness
        of the Credit Parties under this Agreement or other Loan Documents;
  (nn) purchase
        money Indebtedness and Capitalized Lease Obligations incurred after the Closing
        Date to acquire equipment or real property in the ordinary course of business; provided  that (i) the aggregate amount of all such Indebtedness does not exceed five
        million Dollars ($5,000,000) at any time outstanding, (ii) the Indebtedness
        when incurred shall not be more than 90% of the lesser of the cost or fair
        market value of the acquired asset as of the time of acquisition of the asset
        financed, (iii) such Indebtedness is issued and any Liens securing such
        Indebtedness are created prior to or within 60 days after the acquisition
        of the
        asset financed, and (iv) no Lien securing such Indebtedness shall extend to
        or cover any property or asset other than the asset so financed;
  (oo) intercompany
        Indebtedness owed to a Credit Party, which Indebtedness constitutes Pledged
        Debt;
  (pp) Indebtedness
        under performance bonds, bid bonds, appeal bonds, surety bonds, completion
        guarantees and letter of credit obligations made in the ordinary course of
        business (i) in compliance with workers’ compensation, unemployment insurance
        and other social security or employment laws or regulations or similar
        legislation or to secure public, statutory or regulatory obligations or
        (ii) pursuant to any leases specifically permitted by this Agreement
        including Mining Leases entered into in the ordinary course of
        business;
  (qq) Contingent
        Obligations with respect to endorsements of checks and other negotiable
        instruments for deposit or collection;
  28
  (rr) Guarantees
        by a Credit Party of Indebtedness of another Credit Party if such Credit
        Party
        could have directly incurred such Indebtedness hereunder;
  (ss) to
        the
        extent constituting Contingent Obligations, indemnification obligations and
        other similar obligations of the Borrowers and their Subsidiaries in favor
        of
        directors, officers, employees, consultants or agents of the Borrowers or
        any of
        their Subsidiaries extended in the ordinary course of business or to the
        extent
        constituting accruals for payroll, vacation or bonus payments incurred in
        the ordinary course of business or pursuant to obligations under employment
        agreements;
  (tt) unsecured
        Indebtedness incurred in the ordinary course of business in an aggregate
        amount
        for all Credit Parties and its Subsidiaries taken as a whole not to exceed
        an
        amount equal to ten million Dollars ($10,000,000);
  (uu) any
        Operating Lease entered into in the ordinary course of business;
        and
  (vv) any
        Permitted Refinancing of any of the foregoing.
  “ Permitted
        Investments ”
        means:
  (ww) cash
        or
        Cash Equivalents in Securities Accounts or Deposit Accounts with respect
        to
        which a Control Agreement has been executed and delivered;
  (xx) Investments
        in negotiable instruments for collection;
  (yy) advances
        made in connection with purchases of goods or services in the ordinary course
        of
        business;
  (zz) Investments
        (including obligations owing under Indebtedness) received in connection with
        the
        bankruptcy or reorganization of suppliers and customers and in settlement
        of
        delinquent obligations of, and other disputes with, customers and suppliers
        arising in the ordinary course of business;
  (aaa) Investments
        by a Credit Party in a Credit Party other than the Borrowers;
  (bbb) Investments
        existing on the date hereof in Persons which are Subsidiaries of such Credit
        Party on the Closing Date; and
  (ccc) Investments
        consisting of non-cash consideration received from the purchaser of assets
        in
        connection with a sale of such assets in an aggregate amount not to exceed
        one
        million Dollars ($1,000,000).
  “ Permitted
        Protest ”
means
        the right of a Person to protest any Lien (other than any such Lien that
        secures
        all or any portion of the Obligations) or taxes, provided  that (a) a reserve with respect to such obligation is established, if required,
        by such Person in such amount as is required under GAAP, (b) any such
        protest is instituted promptly and prosecuted diligently and in good faith
        by
        such Person, and (c) if such Permitted Protest is for an amount in excess
        of
        five million Dollars ($5,000,000), the Administrative Agent shall have
        determined in the exercise of its reasonable discretion, that such Lien could
        not reasonably be or become senior to, or have or obtain priority over, any
        Lien
        in favor of the Collateral Agent in or to any portion of the
        Collateral.
  29
  “ Permitted
        Refinancing ”
means,
        with respect to any Person, any modification, refinancing, refunding, renewal
        or
        extension of any Indebtedness of such Person; provided  that (a) the
        principal amount (or accreted value, if applicable) thereof does not exceed
        the
        principal amount (or accreted value, if applicable) of the Indebtedness so
        modified, refinanced, refunded, renewed or extended at the time of such
        Permitted Refinancing except by the amount of any fees and expenses incurred
        in
        connection with such modification, refinancing, refunding, renewal or extension,
        (b) such modification, refinancing, refunding, renewal or extension has a
        final maturity date equal to or later than the final maturity date of the
        Indebtedness being modified, refinanced, refunded, renewed or extended and
        the
        weighted average life to maturity is no shorter than the Indebtedness being
        refinanced, refunded, renewed or extended, and (c) if the Indebtedness
        being modified, refinanced, refunded, renewed or extended is subordinated
        in
        right of payment to the Obligations, such modification, refinancing, refunding,
        renewal or extension is subordinated in right of payment to the Obligations
        on
        subordination terms at least as favorable to the Lenders, taken as a whole,
        as
        those contained in the documentation governing the Indebtedness being modified,
        refinanced, refunded, renewed or extended, as determined by the board of
        directors of such Person.
  “ Person ”
means
        any individual, corporation, limited liability company, partnership,
        association, joint-stock company, trust, unincorporated organization, joint
        venture or Governmental Authority.
  “ Plan ”
means
        any “ employee
        benefit plan ”,
        as
        defined in Section 3(3) of ERISA.
  “ Pledged
        Debt ”
shall
        have the meaning ascribed to such term in the Security Agreement.
  “ Prep
        Plant Lease ”
means
        any Lease entered into by a Credit Party in respect of a preparation plant
        and/or a related property on which the preparation plant is situated or in
        respect of a Coal Handling Facility.
  “ Prime
        Rate ”
means
        the “Prime Rate” quoted in The Wall Street Journal, Money Rates Section as the
        Prime Rate (currently defined as the base rate on corporate loans posted
        by at
        least 75% of the nation’s thirty (30) largest banks), as in effect from time to
        time, with any change in the Prime Rate becoming effective from and including
        the date upon which any such change is publicly announced as being effective.
        The Prime Rate is a reference rate and does not necessarily represent the
        lowest
        or best rate actually charged to any customer. Any Agent or any other Lender
        may
        make commercial loans or other loans at rates of interest at, above or below
        the
        Prime Rate.
  “ Prior
        Credit Agreement ”
means
        that certain credit agreement among the JRCC, the lenders party thereto,
        PNC
        Bank, National Association as administrative agent and Morgan Stanley Senior
        Funding, Inc. as syndication agent, dated as of May 31, 2006.
  30


“ Pro
        Rata Share” means,
        with respect to a Lender at any time, a fraction (expressed as a percentage),
        the numerator of which is the amount of such Lender’s Commitment at such time
        and the denominator of which is the sum of the amounts of all of the Lenders’
Commitments at such time, or if no Commitments are outstanding at such time,
        a
        fraction (expressed as a percentage), the numerator of which is the amount
        of
        Obligations owed to such Lender at such time and the denominator of which
        is the
        aggregate amount of the Obligations owed to all Lenders at such
        time.
  “ Protective
        Advances ”
has
        the
        meaning ascribed to such term in SECTION
        2.03 .
  “ Property ”
means
        any right or interest in or to property of any kind whatsoever, whether real,
        personal or mixed and whether tangible or intangible.
  “ Real
        Estate Asset ”
means,
        at any time of determination, any interest in a real property (fee, leasehold
        or
        otherwise) then owned or held by any Borrower or any of its
        Subsidiaries.
  “ Recipient ”
has
        the
        meaning ascribed to such term in SECTION
        14.22 .
  “ Register ”
has
        the
        meaning ascribed to such term in SECTION
        14.10(d) .
  “ Registered ”
means
        issued by, registered with, renewed by or the subject of a pending application
        before any Governmental Authority or Internet domain name
        registrar.
  “ Registered
        Intellectual Property ”
means
        all Intellectual Property that has been Registered with, filed in or issued
        by,
        as the case may be, the United States Patent and Trademark Office or such
        other
        similar filing offices, domestic or foreign, as applicable.
  “ Regulation T ”,
        “ Regulation U ”,
        and
“ Regulation X ”
mean,
        respectively, Regulations T, U, and X of the Federal Reserve Board or any
        successor, as the same may be amended or supplemented from time to
        time.
  “ Related
        Party ”,
        as
        applied to any Person, means any other Person directly or indirectly
        controlling, controlled by, or under common control with, that Person. For
        the
        purposes of this definition, “control” (including, with correlative meanings,
        the terms “controlling”, “controlled by” and “under common control with”), as
        applied to any Person, means the possession, directly or indirectly, of the
        power to vote ten percent (10%) or more of the Securities having voting power
        for the election of directors of such specified Person or otherwise to direct
        or
        cause the direction of the management and policies of such specified Person,
        whether through the ownership of voting Securities or by contract or
        otherwise.
  “ Release ”
means
        any spilling, leaking, pumping, pouring, emitting, emptying, discharging,
        injecting, escaping, leaching, seeping, migrating, dumping or disposing of
        any
        Hazardous Material (including the abandonment or discarding of barrels,
        containers and other closed receptacles containing any Hazardous Material)
        into
        the environment, including ambient air, soil, surface or ground water in
        violation of any Environmental Law.
  31
  “ Remedial
        Action ”
means
        all actions taken to (a) clean up, remove, remediate, contain, treat,
        monitor, assess, evaluate or in any other way address Hazardous Materials
        in the
        environment; (b) prevent or minimize a Release or threatened Release of
        Hazardous Materials so they do not migrate or endanger or threaten to endanger
        public health or welfare or the environment; (c) perform pre-remedial
        studies and investigations and post-remedial operation and maintenance
        activities; or (d) any other actions authorized by 42 U.S.C.
§ 9601.
  “ Reportable
        Event ”
means
        any of the events described in Section4043(c) of ERISA or the regulations
        thereunder other than a Reportable Event as to which the provision of 30
        days’
notice to the Pension Benefit Guaranty Corporation is waived under applicable
        regulations.
  “ Required
        Lenders ”
means
        the Lenders whose Pro Rata Shares equal more than 50% of the aggregate Revolver
        Exposure.
  “ Requirements
        of Law ”
means,
        as to any Person, the charter and by-laws or other organizational or Governing
        Documents of such Person, and any law, ordinance, rule, regulation, requirement,
        or determination of an arbitrator or a court or other Governmental Authority,
        in
        each case applicable to or binding upon such Person or any of its property
        or to
        which such Person or any of its property is subject, including, without
        limitation, Mining Laws, the Patriot Act, the Securities Act, the Securities
        Exchange Act, Regulations T, U and X, ERISA, the Internal Revenue Code, the
        Fair
        Labor Standards Act and any certificate of occupancy, zoning ordinance,
        building, environmental or land use requirement or Permit or environmental,
        labor, employment, occupational safety or health law, rule or
        regulation.
  “ Reserves ”
has
        the
        meaning ascribed to such term in SECTION
        2.01(b) .
  “ Restricted
        Payments ”
means,
        with respect to any Person (a) any dividend or other distribution, direct
        or indirect, on account of any shares of any Equity Interest of such Person
        now
        or hereafter outstanding, (b) any redemption, retirement, sinking fund or
        similar payment, purchase or other acquisition for value, direct or indirect,
        of
        any Equity Interest of, such Person now or hereafter outstanding, (c) any
        payment or prepayment of principal of, premium, if any, or interest, fees
        or
        other charges on or with respect to, and any redemption, purchase, retirement,
        defeasance, sinking fund or similar payment and any claim for rescission
        with
        respect to any Indebtedness which is contractually subordinated to the
        Obligations, and (d) any payment made to redeem, purchase, repurchase or
        retire, or to obtain the surrender of, any outstanding warrants, options
        or
        other rights to acquire shares of any class of capital stock of, partnership
        interest of or other Equity Interest of, such Person now or hereafter
        outstanding.
  “ Revolver
        Priority Collateral ”
has
        the
        meaning ascribed to such term in the Intercreditor Agreement.
  “ Revolving
        Advance ”
has
        the
        meaning ascribed to such term in SECTION
        2.01(a) .
  “ Sale
        and Leaseback ”
has
        the
        meaning ascribed to such term in SECTION
        9.08 .
  32
  “ SEC ”
means
        the Securities and Exchange Commission or any other similar or successor
        agency
        of the Federal government administering the Securities Act.
  “ Securities ”
means
        any capital stock, shares, voting trust certificates, bonds, debentures,
        notes,
        loans or other evidences of indebtedness, secured or unsecured, convertible,
        subordinated or otherwise, or any certificates of interest, shares or
        participations in temporary or interim certificates for the purchase or
        acquisition of, or any right to subscribe to, purchase or acquire any of
        the
        foregoing, but shall not include the Obligations.
  “ Securities
        Account ”
shall
        have the meaning provided in Section 8-501(a) of the UCC.
  “ Securities
        Act ”
means
        the Securities Act of 1933, as amended, or any successor Federal statute,
        and
        the rules and regulations of the SEC thereunder, all as the same shall be
        in
        effect at the time.
  “ Securities
        Exchange Act ”
means
        the Securities Exchange Act of 1934, as amended or any successor Federal
        statute, and the rules and regulations of the SEC thereunder, all as the
        same
        shall be in effect at the time.
  “ Security
        Agreement ”
means
        the Pledge and Security Agreement, dated as of the date hereof, among the
        Borrowers, the Grantors identified therein and the Collateral Agent, as such
        agreement may be amended, supplemented or otherwise modified from time to
        time
        in accordance therewith and herewith.
  “ Security
        Documents ”
means
        the Security Agreement, each Mortgage, the UCC financing statements, the
        Control
        Agreements, and any other documents granting or perfecting a Lien upon any
        portion of the Collateral as security for all or any part of the Obligations,
        including all Security Documents delivered after the Closing Date pursuant
        to SECTION
        8.08 or
        otherwise.
  “ Senior
        Funded Indebtedness ”
means
        the Loans (including any outstanding Letter of Credit hereunder) and the
        amount
        of the Term Loan Obligations (as that term is defined in the Term Loan Agreement
        in effect as of the date hereof).
  “ Senior
        Officer ”
means,
        with respect to any Credit Party, such Credit Party’s president, chief executive
        officer, chief administrative officer, chief operating officer, chief financial
        officer or chief accounting officer.
  “ Solvent ”
or
        “ Solvency ”
of
        any
        person means (a) the fair value of the property of such person exceeds its
        total liabilities (including, without limitation, contingent liabilities),
        (b) the present fair saleable value of the assets of such person is not
        less than the amount that will be required to pay its probable liability
        on its
        existing debts as they become absolute and matured, (c) such person does
        not intend to incur debts or liabilities beyond its ability to pay, as such
        debts and liabilities mature, and (d) such person is not engaged, and is
        not about to engage, in business or a transaction for which its property
        would
        constitute an unreasonably small capital. The amount of contingent liabilities
        at any time shall be computed as the amount that, in the light of all the
        facts
        and circumstances existing at such time, represents the amount that can
        reasonably be expected to become an actual or matured liability.
  33
  “ Subsidiary ”
means,
        with respect to any Person at any date, any corporation, limited or general
        partnership, limited liability company, trust, association or other entity
        (a) the accounts of which would be consolidated with those of such Person
        in such Person’s consolidated financial statements if such financial statements
        were prepared in accordance with GAAP, or (b) of which more than 50% of
        (i) the outstanding capital stock having (in the absence of contingencies)
        ordinary voting power to elect a majority of the board of directors of such
        corporation, (ii) the interest in the capital or profits of such
        partnership or limited liability company, or (iii) the beneficial interest
        in such trust or estate is, in respect to each of (i), (ii) and (iii) above,
        at
        the time of determination, owned or controlled directly or indirectly through
        one or more intermediaries, by such Person.
  “ Taxes ”
has
        the
        meaning ascribed to such term in SECTION
        3.04(a) .
  “ Term
        Credit Agreement ”
means
        that certain “Term Credit Agreement” among the Borrowers, the Guarantors, Morgan
        Stanley Senior Funding, Inc. as Administrative Agent and Morgan Stanley &
Co. Incorporated as Collateral Agent dated as of February 26, 2007.
  “ Term
        Loan Agent ”
means
        Morgan Stanley in its capacity as administrative agent under the Term Credit
        Agreement and any successor thereto.
  “ Term
        Loan Obligations ”
means
        the amount of $100,000,000, representing the term loans and the amount of
        the
        commitments for the issuance of letters of credit under the Term Credit
        Agreement, as such amount may be reduced from time to time by payments thereon
        or other reductions thereof.
  “ Total
        Commitment ”
means
        the aggregate principal amount of the Commitments of all the Lenders (it
        being
        understood and agreed that the maximum aggregate principal amount of the
        Commitments shall not exceed the Maximum Revolver Amount).
  “ Trademarks ”
means
        all United States, state and foreign trademarks, trade names, corporate names,
        company names, business names, fictitious business names, internet domain
        names,
        trade dress, service marks, certification marks, collective marks, logos,
        all
        indicators of the source of goods or services, designs and general intangibles
        of a like nature, all registrations and applications for any of the foregoing
        including, but not limited to the registrations and applications referred
        to in SECTION
        6.01(w) (as such
        schedule may be amended or supplemented from time to time), but excluding
        in all
        cases all intent-to-use United States trademark applications for which an
        amendment to allege use or statement of use has not been filed under 15 U.S.C.
§
1051(c) or 15 U.S.C. § 1051(d), respectively, or if filed, has not been deemed
        in conformance with 15 U.S.C. § 1051(a) or examined and accepted, respectively,
        by the United States Patent and Trademark Office, all extensions or renewals
        of
        any of the foregoing, all of the goodwill of the business connected with
        the use
        of and symbolized by the foregoing, the right to sue for past, present and
        future infringement or dilution of any of the foregoing or for any injury
        to
        goodwill, and all proceeds of the foregoing, including licenses, royalties,
        income, payments, claims, damages, and proceeds of suit, which are owned
        or
        licensed by a Credit Party.
  34
  “ Trade
        Secrets ”
means
        all trade secrets and all other confidential or proprietary information and
        know-how including drawings, formulae, schematics, designs, plans, processes,
        supplier lists, business plans, business methods and prototypes now or hereafter
        owned or used in the business of such Credit Party throughout the world,
        whether
        or not such Trade Secret has been reduced to a writing or other tangible
        form,
        including all documents and things embodying, incorporating, or referring
        in any
        way to such Trade Secret, the right to sue for past, present and future
        infringement of any Trade Secret, and all proceeds of the foregoing, including
        licenses, royalties, income, payments, claims, damages, and proceeds of
        suit.
  “ UCC ”
means
        the Uniform Commercial Code enacted in the State of New York, as amended
        from
        time to time; provided  that if by
        reason of mandatory provisions of law, the perfection, the effect of perfection
        or non-perfection or priority is governed by the Uniform Commercial Code
        as in
        effect in a jurisdiction other than New York, “ UCC ”
means
        the Uniform Commercial Code as in effect in such other jurisdiction for purposes
        of the provisions hereof relating to such perfection, effect of perfection
        or
        non-perfection or priority.
  “ Unused
        Commitment Fee ”
has
        the
        meaning ascribed to such term in SECTION
        4.04(a) .
  “ Wholly-Owned ”
means,
        when used to describe any Subsidiary of a Credit Party, that all of the capital
        stock (other than directors’ qualifying shares) of or other Equity Interests in
        such Subsidiary is owned directly or indirectly by one or more Credit Parties
        or
        by other Wholly-Owned Subsidiaries of a Credit Party.
  SECTION
        1.02 Terms
        Generally .
        The
        definitions of terms herein shall apply equally to the singular and plural
        forms
        of the terms defined. Whenever the context may require, any pronoun shall
        include the corresponding masculine, feminine and neuter forms. The words
        “include”, “includes” and “including” shall be deemed to be followed by the
        phrase “without limitation”. The word “will” shall be construed to have the same
        meaning and effect as the word “shall”. Unless the context requires otherwise,
        (a) any definition of or reference to any agreement, instrument or other
        document herein shall be construed as referring to such agreement, instrument
        or
        other document as from time to time amended, supplemented or otherwise modified
        (subject to any restrictions on such amendments, supplements or modifications
        set forth herein), (b) any reference herein to any Person shall be
        construed to include such Person’s successors and assigns, (c) the words
“herein”, “hereof” and “hereunder”, and words of similar import, shall be
        construed to refer to this Agreement in its entirety and not to any particular
        provision hereof, and (d) all references herein to Articles, Sections,
        Exhibits and Schedules shall be construed to refer to Articles and Sections
        of,
        and Exhibits and Schedules to, this Agreement, (e) any reference to any law
        or regulation herein shall, unless otherwise specified, refer to such law
        or
        regulation as amended, modified or supplemented from time to time and
        (f) the words “asset” and “property” shall be construed to have the same
        meaning and effect and to refer to any and all tangible and intangible assets
        and properties, including cash, securities, accounts and contract
        rights.
  SECTION
        1.03 Accounting
        and Other Terms .
        Unless
        otherwise expressly provided herein, each accounting term used herein shall
        have
        the meaning given to it under GAAP. All terms used in this Agreement which
        are
        defined in Article 8 or Article 9 of the UCC and which are not
        otherwise defined herein shall have the same meanings herein as set forth
        therein.
  35
  SECTION
        1.04 Time
        References .
        Unless
        otherwise indicated herein, all references to time of day refer to Eastern
        standard time or Eastern daylight saving time, as in effect in New York,
        New
        York on such day. For purposes of the computation of a period of time from
        a
        specified date to a later specified date, the word “from” means “from and
        including” and the words “to” and “until” each means “to but excluding”; provided , however ,
        that
        with respect to a computation of fees or interest payable to the Administrative
        Agent or the Lenders, such period shall in any event consist of at least
        one
        full day.
  ARTICLE
        II
 THE
        FACILITY
  SECTION
        2.01 Revolving
        Advances .
  (a)  Commitments . Subject
        to the terms and conditions of this Agreement, and during the term of this
        Agreement, each Lender agrees (severally, not jointly or jointly and severally)
        to make advances (each a “ Revolving
        Advance ”)
        to the
        Borrowers in an amount at any one time outstanding not to exceed such Lender’s
        Pro Rata Share of an amount equal to the lesser of (i) the Maximum Revolver
        Amount less the Letter of Credit Usage at such time, or (ii) the Borrowing
        Base
        at such time less the Letter of Credit Usage at such time.
  (b)  Anything
        to the contrary in this SECTION
        2.01 notwithstanding, the Administrative Agent shall have the right to establish
        reserves against the Borrowing Base in such amounts, and with respect to
        such
        matters, as the Administrative Agent in its discretion shall deem necessary
        or
        appropriate, including (i) reserves with respect to (A) sums that Borrowers
        are
        required to pay by any Section of this Agreement or any other Loan Document
        (such as taxes, assessments, insurance premiums, or, in the case of leased
        assets, rents or other amounts payable under such leases) and have failed
        to
        pay, and (B) amounts owing by Borrowers or their Subsidiaries to any Person
        to
        the extent secured by a Lien on, or trust over, any of the Collateral (other
        than Liens in favor of the collateral agent under the Term Credit Agreement),
        which Lien or trust, in the discretion of the Administrative Agent likely
        would
        have a priority superior to the Collateral Agent’s Lien (such as Liens or trusts
        in favor of landlords, warehousemen, carriers, mechanics, materialmen, laborers,
        or suppliers, or Liens or trusts for ad valorem, excise, sales, or other
        taxes
        where given priority under Applicable Law) in and to such item of the
        Collateral, (ii) reserves for obligations owed to financial institutions
        in
        which Deposit Accounts or Securities Accounts are maintained, (iii) a reserve
        for accrued, unpaid interest then due on the Obligations, (iv) reserves for
        rent
        at a leased, warehouse or bailment location for which the Collateral Agent
        has
        not received a collateral access or similar agreement, which reserve shall
        be in
        an amount equal to the lesser of (A) 3 months’ rent or (B) applicable
        Availability provided by the Eligible Inventory at such location, and reserves
        for other statutory liens, (v) reserves against availability from Inventory
        for
        shrinkage consistent with historical or industry experience in excess of
        shrinkage taken into account in the calculation of the value of Eligible
        Inventory, (vi) reserves for taxes, assessments, charges and other governmental
        levies which are delinquent, (vii) reserves against availability from Accounts
        for dilution in excess of five percent (5%), and (viii) after the occurrence
        and
        during the continuance of an Event of Default, reserves with respect to such
        other matters as the Administrative Agent in its discretion shall deem necessary
        or appropriate (together, “ Reserves ”).
  36
  (c)  Amounts
        borrowed pursuant to this SECTION
        2.01 may be
        repaid and, subject to the terms and conditions of this Agreement, reborrowed
        at
        any time during the term of this Agreement.
  (d)  Borrowing
        Request .
        If the
        Borrowers desire to borrow Revolving Advances under SECTION
        2.01(a) ,
        the
        Administrative Borrower shall deliver to the Administrative Agent a Borrowing
        Request signed by the Administrative Borrower in substantially the form attached
        as Exhibit B-1 not
        later than 12:00 noon (i) in the case of a request for a Base Rate Loan, on
        the proposed Funding Date or (ii) in the case of a request for a LIBOR Rate
        Loan, at least three (3) Business Days in advance of the proposed Funding
        Date. Such Borrowing Request shall specify: (A) the aggregate principal
        amount of Revolving Advances to be made on the Funding Date; (B) whether
        such Revolving Advances shall be comprised of LIBOR Rate Loans or Base Rate
        Loans; (C) the proposed Funding Date, which must be a Business Day; and
        (D) if applicable, the LIBOR Period for such Revolving
        Advances. Each
        borrowing of a Revolving Advance under SECTION
        2.01(a) shall,
        in the case of LIBOR Rate Loans, be in an amount equal to $1,000,000 or a
        whole
        multiple of $100,000 in excess thereof.
  (e)  Making
        the Revolving Advances .
  (i)  The
        Administrative Agent shall promptly notify each Lender of the amount of each
        borrowing requested by the Borrowers. Each Lender shall make an amount equal
        to
        its Pro Rata Share of the amount of such borrowing available to the
        Administrative Agent by wire transfer to the Administrative Agent’s Account in
        immediately available funds, not later than 1:00 p.m. on the Funding Date
        applicable thereto. Subject to the satisfaction of the conditions precedent
        set
        forth in ARTICLE
        V ,
        the
        Administrative Agent shall make the proceeds of such amounts received by
        it
        available to the Borrowers on such Funding Date. All Revolving Advances made
        hereunder shall be made available to the Borrowers at the Borrower Funding
        Account.
  (ii)  Except
        as
        otherwise provided in this SECTION
        2.01(f) ,
        all
        Revolving Advances under this Agreement shall be made by the Lenders
        simultaneously and proportionately to their Pro Rata Shares. The failure
        of any
        Lender to deposit the amount described in clause (i) above
        with the Administrative Agent on the applicable Funding Date shall not relieve
        any other Lender of its obligations hereunder to make its Revolving Advance
        on
        such Funding Date. No Lender shall be responsible for any failure by any
        other
        Lender to perform its obligation to make a Revolving Advance hereunder nor
        shall
        the Commitment of any Lender be increased or decreased as a result of any
        such
        failure, and each Lender shall be obligated to make the Revolving Advances
        required to be made by it by the terms of this Agreement regardless of the
        failure by any other Lender.
 37
 (f)  Funding
        of Revolving Advances .
        Unless
        the Administrative Agent shall have received notice from a Lender, prior
        to the
        requested Funding Date, that such Lender will not make available to the
        Administrative Agent such Lender’s Pro Rata Share of such Loans, the
        Administrative Agent may, but shall not be required to, assume that such
        Lender
        has made such share available on such date in accordance with SECTION
        2.01(f) and may
        in its sole discretion, but shall not be required to, in reliance upon such
        assumption, make available to the Borrowers a corresponding amount. If any
        Lender either does not make its share of the applicable Loans available to
        the
        Administrative Agent or delays in doing so past 4:00 p.m. on the Funding
        Date
        (such Lender (until it makes such share available) shall be hereinafter referred
        to as a “ Defaulting
        Lender ”),
        then
        the Administrative Agent shall notify the Administrative Agent and the
        Administrative Borrower of such default. If the Administrative Agent has,
        in its
        sole discretion, made available to the Borrowers an amount corresponding
        to such
        Defaulting Lender’s Pro Rata Share of the Loans, then the Defaulting Lender and
        the Borrowers jointly and severally agree to pay such amount to the
        Administrative Agent on demand with interest thereon, from and including
        the
        date such amount is made available to the Borrowers to the date of payment
        to
        the Administrative Agent, at:
  (i)  in
        the
        case of the Defaulting Lender, the Federal Funds Rate; or
  (ii)  in
        the
        case of the Borrowers, the interest rate applicable to Base Rate
        Loans.
  (g)  Repayment
        of Revolving Advances; Termination of Commitments .
        The
        principal amount of, interest on and fees related to all outstanding Revolving
        Advances shall be repaid in full on the Maturity Date and any outstanding
        Letters of Credit shall be returned for cancellation or Cash Collateralized
        in
        the manner provided in Annex
        A .
        The
        Commitments shall terminate on the Maturity Date.
  (h)  Letter
        of Credit Subfacility .
        Subject
        to and in accordance with the terms and conditions contained herein and in Annex A to this
        Agreement, the Borrowers shall have the right to request, and the L/C Issuer
        agrees to issue, Letters of Credit and the Lenders agree to incur, or purchase
        participations in, Letter of Credit Usage in respect of the
        Borrowers.
  SECTION
        2.02 Use
        of
        Proceeds . Proceeds
        of the Loans shall be utilized to:
        (a) refinance certain existing secured indebtedness and replace existing
        letters of credit on the Closing Date, (b) pay fees and expenses associated
        with the Loans and (c) provide for working capital and other general
        corporate purposes. No portion of the Loans may be used to fund voluntary
        prepayments of the Term Loan Obligations.
  SECTION
        2.03 Protective
        Advances. The
        Collateral Agent hereby is authorized by the Borrowers and the Lenders, from
        time to time in the Collateral Agent’s sole discretion, (a) after the
        occurrence and during the continuance of a Default or Event of Default, or
        (b) at any time that any of the other applicable conditions precedent set
        forth in SECTION
        5.02 are not
        satisfied, to make loans to the Borrowers (“ Protective
        Advances ”)
        in an
        aggregate amount not to exceed three million five hundred thousand Dollars
        ($3,500,000) that the Collateral Agent, in its sole discretion, deems necessary
        or desirable (i) to preserve or protect the Collateral, or any portion
        thereof, (ii) to enhance the likelihood of repayment of the Obligations or
        (iii) to pay any other amount chargeable to the Borrowers pursuant to the
        terms of this Agreement, including Lender Expenses and the costs, fees and
        expenses pursuant to this Agreement, provided  that Protective Advances shall not cause the amount of the Loans to exceed the
        Maximum Revolver Amount. The Collateral Agent shall promptly notify the
        Administrative Borrower of any Protective Advances made to the
        Borrowers.
  38
  Each
        Protective Advance shall be deemed to be a Loan hereunder and shall bear
        interest at the default rate set forth in SECTION
        4.01(b) ,
        except
        that no Protective Advance shall be eligible to be a LIBOR Rate Loan. The
        Protective Advances shall be repayable on demand and shall be secured
        Obligations pursuant to the Security Documents, and shall bear interest at
        the
        rate applicable from time to time to Loans that are Base Rate Loans. The
        provisions of this SECTION
        2.03 are
        for
        the exclusive benefit of the Agents and the Lenders and the Collateral Agent
        has
        no obligation to make Protective Advances.
  SECTION
        2.04 Promise
        to Pay .
        Each of
        the Borrowers, jointly and severally, agrees to pay (a) the principal
        amount of the Loans in full on the Maturity Date or such earlier date as
        they
        may become due and payable, whether by operation of SECTION
        3.02 ,
        by
        acceleration or otherwise, (b) all fees and other amounts due under the
        Agents Fee Letter due on the Closing Date and from time to time after the
        Closing Date when due, (c) all Lender Expenses on demand, (d) all
        unpaid interest accrued, in accordance with the terms of this Agreement and
        any
        applicable Note or such earlier date as such amounts may become due and payable,
        whether by acceleration or otherwise, (e) all issuance charges and other
        amounts when due to each L/C Issuer in accordance with Annex A ,
        this
        Agreement, and other documentation between a Borrower and each such L/C Issuer,
        (e) all mandatory prepayments when due under this Agreement, and (f) all
        other
        Obligations when due under this Agreement.
  SECTION
        2.05 Notes .
  (a) The
        Borrowers’ obligation to pay the principal of, and interest on, the Loans made
        to the Borrowers by each Lender shall be set forth on the Register maintained
        by
        the Administrative Agent and, subject to the provisions of SECTION
        2.05(c) ,
        shall
        be evidenced by, at the request of the applicable Lender, a promissory note
        substantially in the form of Exhibit N-1 ,
        with
        blanks appropriately completed in conformity herewith (each, as the same
        may be
        amended, supplemented or otherwise modified from time to time, a “ Note ”).
  (b) The
        Note
        issued to each requesting Lender shall (i) be executed jointly by each of
        the Borrowers, (ii) be payable to such Lender or its registered assigns and
        be dated the Closing Date (or, in the case of any Note issued after the Closing
        Date, the date of issuance thereof), (iii) be in a stated principal amount
        equal to such Lender’s Commitment on the Closing Date or on the date of the
        issuance thereof (if issued after the Closing Date) and be payable in the
        principal amount of Revolving Advances evidenced thereby from time to time,
        (iv) mature on the Maturity Date, (v) bear interest as provided herein
        and (vi) be entitled to the benefits of this Agreement and the other Loan
        Documents.
  (c) Notwithstanding
        anything to the contrary contained above or elsewhere in this Agreement,
        Notes
        shall only be delivered to Lenders which at any time specifically request
        the
        delivery of such Notes. No failure of any Lender to request or obtain a Note
        evidencing its Loans to the Borrowers shall affect or in any manner impair
        the
        obligation of the Borrowers to pay the Loans (and all related Obligations)
        which
        would otherwise be evidenced thereby in accordance with the requirements
        of this
        Agreement, and shall not in any way affect the security or Guaranties therefor
        provided pursuant to the Loan Documents. At any time when any Lender requests
        the delivery of a Note to evidence any of its Loans, each Borrower shall
        promptly jointly execute and deliver to that Lender the requested Note in
        the
        appropriate amount or amounts to evidence such Loans.
  39
  SECTION
        2.06 Authorized
        Officers and Administrative Agent .
  (a) On
        the
        Closing Date and from time to time thereafter as necessary to reflect changes
        in
        the Authorized Officers, the Administrative Borrower shall deliver to the
        Administrative Agent a secretary’s certificate setting forth the names of the
        Senior Officers or other agents of the Administrative Borrower authorized
        to
        request Loans and containing a specimen signature of each such officer or
        agent.
        The Administrative Agent shall be entitled to rely conclusively on such
        officer’s or agent’s authority to request Loans until the Administrative Agent
        receives written notice to the contrary. In addition, the Administrative
        Agent
        shall be entitled to rely conclusively on any written notice sent to it by
        telecopy. The Administrative Agent shall have no duty to verify the authenticity
        of the signature appearing on, or any telecopy or facsimile of, any written
        Borrowing Request, or any other document, and, with respect to an oral request
        for such a Loan, the Administrative Agent shall have no duty to verify the
        identity of any person representing himself or herself as one of the officers
        or
        agents authorized to make such request or otherwise to act on behalf of the
        Borrowers. Neither the Administrative Agent nor the Lenders shall incur any
        liability to the Borrowers, or any other Person in acting upon any telecopy
        or
        facsimile or telephonic notice referred to above which the Administrative
        Agent
        in good faith reasonably believes to have been given by a duly authorized
        Senior
        Officer, agent or other person authorized to borrow in the name of the
        Administrative Borrower on behalf of the Borrowers except in the case of
        gross
        negligence or willful misconduct by the Administrative Agent as determined
        in a
        final judgment by a court of competent jurisdiction.
  (b) Each
        Credit Party hereby designates the Administrative Borrower on its behalf
        for the
        purposes of issuing the Notices of Borrowing and Notices of
        Conversion/Continuation, giving instructions with respect to the disbursement
        of
        the proceeds of the Loans, selecting interest rate options, requesting Letters
        of Credit, giving and receiving all other notices and consents hereunder
        or
        under any of the other Loan Documents and taking all other actions (including
        in
        respect of compliance with covenants) on behalf of the Credit Parties under
        the
        Loan Documents. The Administrative Borrower hereby accepts such appointment.
        Each Agent and each Lender may regard any notice or other communication pursuant
        to any Loan Document from the Administrative Borrower as a notice or
        communication from all Credit Parties, and may give any notice or communication
        required or permitted to be given to the Administrative Borrower or to any
        other
        Credit Party hereunder to the Administrative Borrower on behalf of itself
        and
        all Credit Parties. Each Credit Party agrees that each notice, election,
        representation and warranty, covenant, agreement and undertaking made on
        its
        behalf by the Administrative Borrower shall be deemed for all purposes to
        have
        been made by such Credit Party and shall be binding upon and enforceable
        against
        such Credit Party to the same extent as if the same had been made directly
        by
        such Credit Party.
  40
  SECTION
        2.07 Joint
        and Several Liability of the Credit Parties .
        Each
        Credit Party is and shall be jointly and severally liable for the repayment
        of,
        and agrees to pay when due, all Loans, all interest, fees, Lender Expenses
        and
        all other Obligations.
  SECTION
        2.08 Loan
        Account and Accounting .
        The
        Administrative Agent shall maintain a loan account (the “ Loan
        Account ”)
        on its
        books to record: all Revolving Advances and Letter of Credit Usage, all payments
        made by Borrowers, and all other debits and credits as provided in this
        Agreement with respect to the Loans or any other Obligations. All entries
        in the
        Loan Account shall be made in accordance with the Administrative Agent’s
        customary accounting practices as in effect from time to time. The balance
        in
        the Loan Account, as recorded on the Administrative Agent’s most recent printout
        or other written statement, shall, absent manifest error, be presumptive
        evidence of the amounts due and owing to the Administrative Agent and Lenders
        by
        each Borrower; provided
        that any
        failure to so record or any error in so recording shall not limit or otherwise
        affect any Borrower’s duty to pay the Obligations. The Administrative Agent
        shall render to the Administrative Borrower a monthly accounting of transactions
        with respect to the Loans setting forth the balance of the Loan Account as
        to
        the Borrowers for the immediately preceding month. Unless the Administrative
        Borrower notifies the Administrative Agent in writing of any objection to
        any
        such accounting (specifically describing the basis for such objection), within
        thirty (30) days after the date thereof, each and every such accounting shall
        be
        presumptive evidence of all matters reflected therein. Only those items
        expressly objected to in such notice shall be deemed to be disputed by
        Borrowers. Notwithstanding any provision herein contained to the contrary,
        any
        Lender may elect (which election may be revoked) to dispense with the issuance
        of Notes to that Lender and may rely on the Loan Account as evidence of the
        amount of Obligations from time to time owing to it.
  SECTION
        2.09 Application
        of Payments and Proceeds .
  (a) (i)
        So
        long as no Event of Default has occurred and is continuing, (A) all
        Revolver Priority Collateral and all payments consisting of proceeds of Revolver
        Priority Collateral shall be paid to the Revolving Loan Agent for application
        to
        the Revolving Advances; (B) payments matching specific scheduled payments
        then due shall be applied to those scheduled payments; (C) voluntary
        prepayments permitted under this Agreement and under the Term Credit Agreement
        shall be applied as specified by the Administrative Borrower; and
        (D) mandatory prepayments shall be applied as set forth in SECTION
        3.02(c) .
        All
        payments and prepayments applied to the Loans shall be applied ratably to
        the
        portion thereof held by each Lender as determined by its Pro Rata
        Share.
  (i) As
        to any
        other payment, and as to all payments made when an Event of Default has occurred
        and is continuing or following the Maturity Date, each Borrower hereby
        irrevocably waives the right to direct the application of any and all payments
        received from or on behalf of such Borrower, and each Borrower hereby
        irrevocably agrees that the Administrative Agent shall have the continuing
        exclusive right to apply any and all such payments against the Obligations
        of
        Borrowers as the Administrative Agent may deem advisable notwithstanding
        any
        previous entry by the Administrative Agent in the Loan Account or any other
        books and records. In all circumstances, after acceleration or maturity of
        the
        Obligations, all payments and proceeds of Collateral shall be applied to
        amounts
        then due and payable in the following order: (A) to reimburse the L/C
        Issuer for all unreimbursed draws or payments made by it under Letters of
        Credit, (B) to fees and expenses of the Agents reimbursable hereunder; (C)
        to
        interest on the Loans; (D) to principal payments on the Loans and to provide
        Cash Collateral for contingent Letter of Credit Obligations in the manner
        described in Annex A, ratably to the aggregate, combined principal balance
        of
        the Loans and outstanding Letter of Credit Obligations; and (E) to all other
        Obligations.
  41
  (b) The
        Administrative Agent is authorized to, and at its sole election may, charge
        to
        the Loan Account on behalf of each of the Borrowers and cause to be paid
        all
        fees, expenses, charges, costs and other amounts owing or payable by Borrowers
        under this Agreement or any of the other Loan Documents if and to the extent
        Borrowers fail to pay promptly any such amounts as and when due, even if
        the
        amount of such charges would exceed Availability at such time or would cause
        the
        balance of the Revolving Loan to exceed the Borrowing Base after giving effect
        to such charges. At the Administrative Agent’s option and to the extent
        permitted by law, any charges so made shall constitute part of the Revolving
        Loan hereunder.
  (c) Notwithstanding
        any other provisions of this Agreement to the contrary, after the exercise
        of
        remedies by the Administrative Agent, the Collateral Agent or the Lenders
        (or
        after the Commitments shall automatically terminate and the Loans (with accrued
        interest thereon) and Obligations under the Loan Documents shall automatically
        become due and payable in accordance with the terms hereof), all proceeds
        of the
        Revolver Priority Collateral shall be paid over or delivered to the
        Administrative Agent for distribution as follows:
  FIRST,
        to
        the payment of amounts due under this Agreement or the other Loan Documents
        as
        specified in the last sentence of SECTION
        2.09(a) ;
  SECOND,
        to all other of the Borrowers’ Obligations under this Agreement and the other
        Loan Documents and other obligations to the Administrative Agent, the L/C
        Issuer
        or the Lenders which shall have become due and payable under the Loan Documents
        or the documents related to the issuance of Letters of Credit; and
  THIRD,
        to
        the payment of the surplus, if any, to the Term Loan Agent for application
        to
        the Term Loan Obligations or, if the Term Loan Agent confirms in writing
        that
        the Term Loan Obligations have been paid in full in cash, to the Administrative
        Borrower.
  In
        carrying out the foregoing, amounts received shall be applied equally and
        ratably in the numerical order provided until exhausted prior to the application
        to the next succeeding category.
  42
  ARTICLE
        III
 PAYMENTS
        AND OTHER COMPENSATION
  SECTION
        3.01 Voluntary
        Prepayments/Reductions of Commitments .
  (a) Optional
        Prepayment of Revolving Advances .
        As set
        forth in SECTION
        2.01(d) ,
        at any
        time after the Closing Date, the Borrowers may prepay, with no corresponding
        reduction in Commitments, and thereafter reborrow, subject to the terms and
        conditions set forth herein (including SECTION
        4.03 ),
        all or
        any portion of the Revolving Advances then outstanding.
  (b) Optional
        Reduction of Commitments .
        So long
        as the Credit Parties, on a consolidated basis, have Availability of at least
        ten million Dollars ($10,000,000) (calculated on a pro forma basis after
        giving
        effect to the reduction contemplated under this SECTION
        3.01(b) ),
        the
        Borrowers shall have the right, upon at least five (5) Business Days’ prior
        written notice by the Administrative Borrower to the Administrative Agent
        to
        cancel the Total Commitment in full or to reduce the amount thereof; provided , that the
        amount of the Total Commitment shall at no time be less than the Loan Exposure.
        Partial reductions of the Total Commitment shall be in a minimum amount of
        five
        million Dollars ($5,000,000) or such lesser amount as may then remain
        outstanding or integral multiples of one million Dollars ($1,000,000) in
        excess
        thereof and shall reduce each Lender’s Commitment on a pro rata basis based upon
        such Lender’s Pro Rata Share. All cancellations or reductions shall be
        permanent. Any such notice of reduction shall be accompanied by the payment
        of
        the Unused Commitment Fee accrued through the date of such cancellation or
        reduction.
  SECTION
        3.02 Mandatory
        Prepayments .
  (a) Prepayments
        from Asset Dispositions .
        Within
        three (3) Business Days after the receipt by a Credit Party or any Subsidiary
        of
        a Credit Party of any Net Cash Proceeds of Revolver Priority Collateral,
        Net
        Casualty/Condemnation Proceeds of Revolver Priority Collateral, or Extraordinary
        Receipts from Revolver Priority Collateral (including, without limitation,
        Bell
        County Net Proceeds consisting of Revolver Priority Collateral), the Borrowers
        shall prepay 100% of such Net Cash Proceeds, Net Casualty/Condemnation Proceeds
        or Extraordinary Receipts to be applied to prepay the Loans. If any
        excess remains after repayment in full of the aggregate outstanding Revolving
        Advances, Borrowers shall provide cash collateral for the Letters of Credit
        in
        the manner set forth in Annex A to the extent required to eliminate such
        excess.
  (b) Overadvance .
        If at
        any time the Aggregate Revolver Exposure exceeds the lesser of (A) the Maximum
        Revolver Amount and (B) the Borrowing Base, Borrowers shall immediately repay
        the aggregate outstanding Revolving Advances to the extent required to eliminate
        such excess. If any such excess remains after repayment in full of the aggregate
        outstanding Revolving Advances, Borrowers shall provide cash collateral for
        the
        Letters of Credit in the manner set forth in Annex A to the extent required
        to
        eliminate such excess.
  (c) Application
        of Proceeds .
        Payments under this SECTION
        3.02 shall be
        paid, in the case of Net Cash Proceeds of Revolver Priority Collateral, Net
        Casualty/Condemnation Proceeds of Revolver Priority Collateral, or Extraordinary
        Receipts from Revolver Priority Collateral (including, without limitation,
        Bell
        County Net Proceeds consisting of Revolver Priority Collateral), to the
        Administrative Agent for application to the Loans and Obligations under this
        Agreement (including the provision of Cash Collateral for Letters of Credit)
        without a permanent reduction in the Commitments unless an Event of Default
        is
        continuing. Unless an Event of Default is continuing the balance shall be
        distributed to the Borrowers.
  43
  SECTION
        3.03 Payments .
  (a) General
        Provisions .
        All
        payments to be made by a Credit Party shall be made without set-off,
        counterclaim or other defense. Except as otherwise expressly provided herein,
        all payments by a Credit Party shall be made to the Administrative Agent
        for the
        ratable account of the relevant Lender or Agent, as the case may be, at the
        Administrative Agent’s Office, and shall be made in immediately available funds,
        no later than 2:00 p.m. (New York City time), on the dates specified
        herein, as the case may be, to be reimbursed. The Administrative Agent will
        promptly distribute to the relevant Lender or Agent its Pro Rata Share or
        other
        applicable share as expressly provided herein, of each such payment in like
        funds as received. Any payment received by the Administrative Agent later
        than
        2:00 p.m. (New York City time) on any Business Day shall be deemed to have
        been received on the following Business Day and any applicable interest or
        fee
        shall continue to accrue until such following Business Day.
  (b) Sharing
        of Payments .
        Except
        as otherwise provided herein, if any Lender shall obtain any payment (whether
        voluntary, involuntary, through the exercise of any right of set-off, or
        otherwise) on account of any Obligation in excess of its ratable share of
        payments on account of similar obligations obtained by all the Lenders, such
        Lender shall (i) notify the Administrative Agent of such fact and (ii) forthwith
        purchase from the other Lenders such participations in such similar obligations
        held by them as shall be necessary to cause such purchasing Lender to share
        the
        excess payment ratably with each of them; provided , however ,
        that if
        all or any portion of such excess payment is thereafter recovered from such
        purchasing Lender, such purchase from each other Lender shall be rescinded
        and
        each such other Lender shall repay to the purchasing Lender the amount of
        the
        purchase made under this SECTION
        3.03(b) to the
        extent of such recovery together with an amount equal to such other Lender’s
        ratable share (according to the proportion of (A) the amount of such
        Lender’s required repayment to (B) the total amount so recovered from the
        purchasing Lender of any interest or other amount paid by the purchasing
        Lender
        in respect of the total amount so recovered). Each Credit Party agrees that
        any
        Lender so purchasing a participation from another Lender pursuant to this SECTION
        3.03(b) may, to
        the fullest extent permitted by law, exercise all of its rights (including
        the
        Lender’s right of set-off) with respect to such participation as fully as if
        such Lender were the direct creditor of such Credit Party in the amount of
        such
        participation.
  (c) Apportionment
        of Payments .
        Subject
        to the provisions of SECTION
        2.09 , SECTION
        3.02 and this SECTION
        3.03(c) ,
        all
        payments of principal and interest in respect of outstanding Loans, and all
        other payments in respect of any Obligations, shall be allocated among the
        Lenders in proportion to their respective Pro Rata Shares of such Obligations
        unless otherwise specified in this Agreement or in any other Loan
        Document.
  44
  (d) Payments
        on Non-Business Days .
        Whenever any payment to be made by the Borrowers hereunder or under the Notes
        is
        stated to be due on a day which is not a Business Day, the payment shall
        instead
        be due on the next succeeding Business Day (unless such succeeding Business
        Day
        would be in the subsequent calendar month, in which case such payment shall
        be
        made on the immediately preceding Business Day).
  SECTION
        3.04 Taxes .
  (a) Payment
        of Taxes .
        Except
        as set forth below, any and all payments by a Credit Party hereunder, under
        the
        Notes or under any other Loan Document shall be made free and clear of and
        without deduction for any and all present or future taxes, levies, imposts,
        deductions, charges or withholdings imposed by any Governmental Authority,
        excluding, in the case of each Agent and each Lender, respectively, taxes
        imposed by (i) the United States except United States federal gross income
        withholding taxes, or (ii) a Governmental Authority as a result of a
        connection or former connection (other than merely being a party to any Loan
        Documents, participating in the transactions contemplated therein, or enforcing
        rights thereunder) between such Agent or Lender and the jurisdiction imposing
        such tax, including any connection arising from such Agent or Lender being
        a
        citizen, domiciliary, or resident of such jurisdiction, being organized in
        such
        jurisdiction, or having a permanent establishment or fixed place of business
        therein (all such taxes, levies, imposts, deductions, charges and withholdings
        other than Excluded Taxes being hereinafter referred to as “ Taxes ”).
        If a
        Credit Party shall be required by law to withhold or deduct any Taxes from
        or in
        respect of any sum payable hereunder, under the Notes or under any other
        Loan
        Document to any Lender or Agent, (A) such sum payable shall be increased by
        an additional amount so that after making all required withholdings or
        deductions (including withholdings or deductions applicable to additional
        amounts payable under this SECTION
        3.04(a)) such
        Lender or Agent receives an amount equal to the sum it would have received
        had
        no such withholdings or deductions been made, (B) such Credit Party shall
        make such withholdings or deductions, and (C) such Credit Party shall pay
        the full amount withheld or deducted to the relevant taxation authority or
        other
        authority in accordance with Applicable Law. Notwithstanding the foregoing,
        a
        Credit Party shall not be required to pay any such additional amounts to
        any
        Agent or any Lender with respect to any Excluded Taxes.
  (b) Other
        Taxes .
        The
        Borrowers agree to pay any present or future stamp or documentary taxes or
        any
        other excise or property taxes, charges or similar levies which arise from
        and
        which relate directly to the execution, delivery or registration of, or
        otherwise with respect to, this Agreement, the Notes or any other Loan Document,
        including all such amounts related to the creation, perfection or maintenance
        of
        the interests of the Agents and the Lenders in the Collateral and all interest
        and penalties related thereto (“ Other
        Taxes ”).
  (c) Indemnification .
        The
        Borrowers will and hereby agree to indemnify each Lender and each Agent against,
        and reimburse each, within ten (10) days of a receipt of written demand
        therefor, for the full amount of all Taxes and Other Taxes (including any
        Taxes
        or Other Taxes imposed by any Governmental Authority on amounts payable to
        such
        Agent or Lender under this SECTION
        3.04(c) )
        incurred or paid by such Lender or such Agent (as the case may be), or any
        Affiliate of such Lender or Agent on or with respect to any payment by or
        on
        account of any Obligation, and any penalties, interest, and reasonable
        out-of-pocket expenses paid to third parties arising therefrom or with respect
        thereto. For the avoidance of doubt, the Borrowers shall not be required
        to
        indemnify a Lender or Agent pursuant to this SECTION
        3.04(c) with
        respect to any Excluded Taxes. A certificate as to any amount payable to
        any
        Person under this SECTION
        3.04(c) submitted by such Person to the Administrative Borrower shall, absent manifest
        error, be final, conclusive and binding upon all parties hereto.
  45
  (d) Receipts .
        Within
        thirty (30) days after a request from the Administrative Agent, each Credit
        Party will furnish to the Administrative Agent the original or a certified
        copy
        of a receipt, if available, or other reasonably available documentation
        reasonably satisfactory to the Administrative Agent evidencing payment of
        such
        Taxes or Other Taxes (including in respect of payments of additional amounts)
        required to be paid by such Credit Party pursuant to this SECTION 3.04 .
        The
        Administrative Borrower will furnish to the Administrative Agent upon the
        Administrative Agent’s request an Officer’s Certificate stating that all Taxes
        and Other Taxes of which it is aware that are due have been paid and that
        no
        additional Taxes or Other Taxes of which it is aware are due.
  (e) Nonresident
        Certifications .
        (i) Each Lender that is not a United States Person (as defined in
        Section 7701(a)(30) of the Code) (a “ Non-U.S.
        Lender ”)
        shall
        deliver to the Administrative Borrower and the Administrative Agent on or
        prior
        to the Closing Date, or, in the case of a Lender that becomes a Lender pursuant
        to SECTION
        14.08 hereof,
        on or prior to the date on which such Lender becomes a Lender pursuant to SECTION
        14.08 ,
        a true
        and accurate IRS Form W-8BEN, W-8IMY (with the necessary attachments), W-8EXP,
        W-8ECI or any subsequent version thereof or successors thereto and such other
        documentation prescribed by Applicable Law executed in duplicate by a duly
        authorized officer of such Lender to the effect that such Lender is eligible
        as
        of such date to receive payments hereunder and under the Notes free and clear
        or
        at a reduced rate of United States federal withholding tax or, in the case
        of a
        Lender that becomes a Lender pursuant to SECTION
        14.08 ,
        that
        such Lender is subject to United States federal withholding tax at a rate
        not in
        excess of the rate to which the assignor was subject as a result of a change
        in
        law, as described in SECTION
        3.04(e)(ii)(B) .
        A
        Non-U.S. Lender shall not be required to deliver any form pursuant to this SECTION
        3.04(e) that it
        is not legally able to deliver.
  (ii) Each
        Non-U.S. Lender further agrees to deliver to the Administrative Borrower
        and the
        Administrative Agent from time to time a true and accurate certificate
        executed in duplicate by a duly authorized officer of such Lender before
        or
        promptly upon the occurrence of any event requiring a change in the most
        recent
        certificate previously delivered by it to the Administrative Borrower and
        the
        Administrative Agent pursuant to this SECTION
        3.04(e) (including upon the expiration, obsolescence or invalidity of such form,
        upon
        the designation of a new lending office and at such other times as may be
        necessary in the determination of the Administrative Borrower and the
        Administrative Agent (each in the reasonable exercise of its discretion)).
        Each
        certificate required to be delivered pursuant to this SECTION
        3.04(e)(ii) shall
        certify as to one of the following:
  (A) that
        such
        Lender can receive payments hereunder and under the Notes free and clear
        or at a
        reduced rate of United States federal withholding tax (in which case the
        certificate shall be accompanied by two duly completed copies of IRS Form
        W-8BEN, W-8IMY (with the necessary attachments), W-8EXP or W-8ECI, as applicable
        (or any successor form);
  46
  (B) that
        such
        Lender is no longer capable of receiving payments hereunder or under the
        Notes
        free and clear or at a reduced rate of United States federal withholding
        tax by
        reason of a change in law (including the Code or any applicable tax treaty)
        after the later of the Closing Date, or in the case of a Lender that becomes
        a
        Lender pursuant to SECTION
        14.08 hereof,
        after the date on which the Lender became a Lender pursuant to SECTION
        14.08 ;
        or
  (C) that
        such
        Lender is not capable of receiving payments hereunder free and clear or at
        a
        reduced rate of United States federal withholding tax other than by reason
        of a
        change in law (including the Code or applicable tax treaty) after the later
        of
        the Closing Date, or in the case of a Lender that becomes a Lender pursuant
        to SECTION
        14.08 hereof,
        after the date on which the Lender became a Lender pursuant to SECTION
        14.08 .
  (f) Resident
        Certifications .
        Each
        Lender that is a United States Person (as defined in Section 7701(a)(30) of
        the Code) and is not an “exempt recipient” (as such term is defined in
        Section 1.6049-4(c)(1)(ii) of the United States Treasury Regulations) shall
        deliver to the Administrative Borrower and the Administrative Agent on or
        prior
        to the Closing Date, or, in the case of a Lender that becomes a Lender pursuant
        to SECTION
        14.08 hereof,
        on or prior to the date on which such Lender becomes a Lender pursuant to SECTION
        14.08 hereof,
        two original copies of IRS Form W-9 (or any successor forms), properly completed
        and duly executed by such Lender, and such other documentation reasonably
        requested by the Administrative Borrower or the Administrative
        Agent.
  (g) Refunds
        and Tax Benefits .
        If a
        Lender or Agent becomes aware that it is entitled to claim a refund from
        a
        Governmental Authority in respect of Taxes or Other Taxes as to which it
        has
        been indemnified by the Borrowers or with respect to which a Credit Party
        has
        paid additional amounts pursuant to SECTION
        3.04(a) or (c) ,
        it
        shall make reasonable efforts to timely claim to such Governmental Authority
        for
        such refund at the Borrowers’ expense. If a Lender or Agent actually receives a
        payment of a refund (including pursuant to a claim for a refund made pursuant
        to
        the preceding sentence) in respect of any Tax or Other Tax as to which it
        has
        been indemnified by the Borrowers or with respect to which a Credit Party
        has
        paid additional amounts pursuant to SECTION
        3.04(a) or (c) ,
        it
        shall within 30 days from the date of such receipt pay over the amount of
        such
        refund to a Credit Party, net of all reasonable out-of-pocket expenses of
        such
        Lender or Agent and without interest (other than interest paid by the relevant
        Governmental Authority with respect to such refund); provided that the
        Borrowers, upon the request of such Lender or Agent, agree to repay the amount
        paid over to a Credit Party (plus penalties, interest or other reasonable
        charges) to such Lender or Agent in the event such Lender or Agent is required
        to repay such refund to such Governmental Authority.
  (h) The
        Borrowers shall not be required to pay any amount to any Lender or Agent
        under SECTION
        3.04(a) or (c) in
        respect of any Taxes imposed by reason of such Lender’s or Agent’s failure for
        any reason other than as specified in SECTION
        3.04(e)(ii)(B) to
        comply with the provisions of SECTION
        3.04(e)(i) or
        because of any form or certificate provided by such Lender or Agent under SECTION
        3.04(c) ,
        other
        than because of a change in tax law specified in SECTION
        3.04(e)(ii)(B) .
  47
  (i) The
        Borrowers shall not be required to indemnify or to pay any additional amounts
        to
        the Lender or Agent with respect to Taxes pursuant to SECTION
        3.04(a) to the
        extent that any obligation to withhold, deduct or pay amounts with respect
        to
        such Tax was in effect and would apply to amounts payable on the date that
        such
        Lender or Agent became a party to this Agreement or that was paid by such
        Lender
        or Agent more than one hundred and eighty (180) days prior to such Lender’s or
        Agent’s demand therefore.
  (j) Without
        affecting its rights under SECTION
        3.04(a) or any
        provision of this Agreement, each Lender and each Agent agrees that if any
        Taxes
        or Other Taxes are imposed and required by law to be paid or to be withheld
        from
        any amount payable to any Lender or Agent with respect to which the Borrowers
        would be obligated to indemnify such Lender or Agent pursuant to SECTION
        3.04(c) ,
        such
        Lender or Agent shall use reasonable efforts to select an alternative lending
        office which would not result in the imposition of such Taxes or Other Taxes, provided
        that such
        change in the good faith judgment of such Lender is not otherwise
        disadvantageous to such Lender.
  ARTICLE
        IV
 INTEREST
  SECTION
        4.01 Interest
        on the Loans and Other Obligations .
  (a) Interest
        on Loans .
        The
        Borrowers agree to pay interest on the unpaid principal amount of each Loan
        on
        each Interest Payment Date, from the date of such Loan through and including
        the
        date such Loan is repaid in full, at a rate equal to the Interest Rate for
        such
        Loan. The Borrowers shall pay the accrued interest and the Unused Commitment
        Fee
        on the Revolver Loans in cash on each Interest Payment Date. All computations
        of
        interest and Commitment Fees hereunder shall be made on the actual number
        of
        days elapsed over a year of, with respect to LIBOR Rate Loans, 360 days or,
        with
        respect to Base Rate Loans only, 365/366 days.
  (b) Default
        Interest .
        So long
        as any Event of Default shall be continuing, the Interest Rate applicable
        to the
        Loans then outstanding or due and owing and any other amount bearing interest
        hereunder, as well as the L/C Fee shall, at the request of the Administrative
        Agent or the Required Lenders, each be increased by 2 percentage points per
        annum above the Interest Rate or L/C Fee otherwise applicable to the Loans
        or
        Letters of Credit.
  (c) Maximum
        Interest .
        Notwithstanding anything to the contrary set forth in this SECTION
        4.01(c) ,
        if at
        any time until payment in full of the Loans, the interest rate payable on
        any
        Loans exceeds the highest rate of interest permissible under any law which
        a
        court of competent jurisdiction shall deem applicable hereto (the “ Highest
        Lawful Rate ”),
        then
        in such event and only for so long as the Highest Lawful Rate would be so
        exceeded, the rate of interest payable on such Loans shall be equal to the
        Highest Lawful Rate. Thereafter, the interest rate payable on such Loans
        shall
        be the applicable interest rate pursuant to paragraphs
        (a) and (b) of this SECTION
        4.01 unless
        and until such rate again exceeds the Highest Lawful Rate, in which event
        this
        paragraph shall again apply. In no event shall the total interest received
        by
        any Lender for any Loans pursuant to the terms hereof exceed the amount which
        it
        could lawfully have received for such Loans had the interest due hereunder
        for
        such Loans been calculated for the full term thereof at the Highest Lawful
        Rate.
        Interest on the Highest Lawful Rate shall be calculated at a daily rate equal
        to
        the Highest Lawful Rate divided by the number of days in the year in which
        such
        calculation is made. In the event that a court of competent jurisdiction,
        notwithstanding the provisions of this SECTION
        4.01(c) ,
        shall
        make a determination that a Lender has received interest hereunder or under
        any
        of the Loan Documents in excess of the Highest Lawful Rate, such Lender shall,
        to the extent permitted by Applicable Law, promptly apply such excess first
        to
        any interest due or accrued and not yet paid under the Loans, then to the
        outstanding principal of the Loans, then to other unpaid Obligations and
        thereafter shall refund any excess to the Borrowers or as a court of competent
        jurisdiction may otherwise order.
  48
  (d) Conversion
        or Continuation .
        The
        Borrowers shall have the option (i) to convert all or any part of its
        outstanding LIBOR Rate Loans to Base Rate Loans at the end of then-current
        LIBOR
        Period therefor, (ii) to convert Base Rate Loans to LIBOR Rate Loans, or
        (iii) to change or continue the LIBOR Period applicable to all or a portion
        of the Loans; provided , however ,
        that
        (A) except as provided in SECTION
        4.03 ,
        LIBOR
        Rate Loans may be converted into Base Rate Loans only on the last day of
        the
        LIBOR Period applicable thereto unless the Borrowers agree to pay all amounts
        due pursuant to SECTION
        4.02 ,
        (B) Loans extended as, or converted into, LIBOR Rate Loans shall be subject
        to the terms of the definition of “ LIBOR
        Period ”
set
        forth in SECTION
        1.01 and to
        the minimum limits specified in SECTION
        2.01(e) ,
        and
        (C) any request for extension or conversion of a LIBOR Rate Loan that shall
        fail to specify an LIBOR Period shall be deemed to be a request for an LIBOR
        Period of one month. Each such extension or conversion shall be effected
        by the
        Borrowers by giving a Notice of Conversion/Continuation (or telephone notice
        promptly confirmed in writing) to the Administrative Agent prior to
        1:00 p.m., New York City time, on the third Business Day prior to the date
        of the proposed extension or conversion, substantially in the form of Exhibit
        N-2 hereto,
        specifying (x) the date of the proposed extension or conversion,
        (y) the Loans to be so extended or converted, (z) the types of Loans
        into which such Loans are to be converted, and, if appropriate, (D) the
        applicable LIBOR Periods with respect thereto. Each Notice of
        Conversion/Continuation shall be irrevocable. The
        Borrowers shall have no more than five (5) LIBOR Rate Loans outstanding at
        any one time.
  (e) Automatic
        Conversion to Base Rate Loans .
        Each
        LIBOR Rate Loan shall automatically be converted to a Base Rate Loan at the
        end
        of the applicable LIBOR Period if (i) the Administrative Borrower does not
        provide a timely Notice of Conversion/Continuation (subject to the provisions
        of SECTION
        4.01(d) ,
        (ii)
        the LIBOR Rate Loan is not permitted to be converted or continued as a LIBOR
        Rate Loan under this Agreement including by virtue of the application of SECTION
        4.01(d) or the
        provisions of this ARTICLE
        IV ),
        or
        (iii) any Default or Event of Default is then continuing. The Administrative
        Agent shall give each Lender notice as promptly as practicable of any such
        proposed extension or conversion affecting any Loan. Promptly after receipt
        of a
        Notice of Conversion/Continuation under SECTION
        4.01(d) ,
        the
        Administrative Agent shall notify each Lender by telex, telecopy, email,
        or
        other similar form of transmission, of the proposed conversion/continuation.
        Any
        Notice of Conversion/Continuation for conversion to, or continuation of,
        a Loan
        shall be irrevocable, and the Borrowers shall be bound to convert or continue
        in
        accordance therewith.
  49
  SECTION
        4.02 Break
        Funding Payments . In
        the
        event of the payment of any principal of any LIBOR Rate Loan other than on
        the
        last day of the LIBOR Period applicable thereto (including as a result of
        an
        Event of Default), or the failure to borrow or prepay any Loan on the date
        specified in any notice delivered pursuant hereto, then, in any such event,
        the
        Borrowers shall compensate each applicable Lender for the loss, cost and
        expense
        attributable to such event. A certificate of any Lender setting forth any
        amount
        or amounts that such Lender is entitled to receive pursuant to this SECTION
        4.02
        shall be delivered to the Borrowers and shall be conclusive absent manifest
        error. The Borrowers shall pay such Lender the amount shown as due on any
        such
        certificate within ten (10) days after receipt thereof.
  SECTION
        4.03 Change
        in Law; Illegality .
  (a) If
        the
        adoption or implementation of, or any change in (or the interpretation,
        administration or application of) any Applicable Law shall, in each case
        after
        the date hereof, (i) impose, modify or deem applicable any reserve, special
        deposit or similar requirement against assets of, deposits with or for the
        account of, or credit extended by, any Lender (except any such reserve
        requirement reflected in the LIBOR Rate) or (ii) impose on any Lender or
        the London interbank market any other condition affecting this Agreement
        or
        LIBOR Rate Loans made by such Lender; and the result of any of the foregoing
        under (i) or (ii) of this SECTION
        4.03(a) shall be
        to increase the cost to such Lender of making or maintaining any LIBOR Rate
        Loan
        (or of maintaining its obligation to make any such Loan), or to increase
        the
        cost to such Lender of participating in, issuing or maintaining any Letter
        of
        Credit (or of maintaining its obligation to participate in or to issue any
        Letter of Credit, or to reduce the amount of any sum received or receivable
        by
        such Lender hereunder (whether of principal, interest or otherwise), then
        the
        Borrowers will pay to such Lender such additional amount or amounts as will
        compensate such Lender for such additional costs incurred or reduction suffered
        to the extent that such Lender reasonably determines that such increase in
        cost
        be allocable to the existence of such Lender’s LIBOR Rate Loans or its
        commitment to lend hereunder.
  (b) If
        any
        Lender reasonably determines that the introduction of or any change in any
        Applicable Law regarding capital requirements, in each case after the date
        hereof, has or would have the effect of reducing the rate of return on such
        Lender’s capital as a consequence of this Agreement or the Loans made by such
        Lender to a level below that which such Lender could have achieved but for
        such
        change in the Applicable Law (taking into consideration such Lender’s policies
        with respect to capital adequacy), then from time to time the Borrowers will
        pay
        to such Lender such additional amount or amounts as will compensate such
        Lender
        for any such reduction suffered to the extent that such Lender reasonably
        determines that such additional amounts are allocable to the existence of
        such
        Lender’s Loans or its commitment to lend hereunder.
  (c) A
        certificate of a Lender setting forth in reasonable detail the amount or
        amounts
        necessary to compensate such Lender as specified in paragraph (a) or (b) of this SECTION
        4.03 shall be
        delivered to the Administrative Borrower and shall be binding and conclusive
        for
        all purposes, so long as it reflects the basis for the calculation of the
        amounts set forth therein and does not contain any manifest error. The Borrowers
        shall pay such Lender the amount shown as due on any such certificate within
        ten
        days after receipt thereof. Notwithstanding the foregoing, (i) the
        applicable Lender shall take such actions (including changing the office
        of
        location of the funding of the Loans) that the Administrative Borrower may
        reasonably request in order to reduce the amounts payable under SECTION
        4.03(a) or (b) , provided  that the
        Borrowers shall reimburse such Lender for any costs incurred by such Lender
        in
        doing so to the extent that such Lender reasonably determines that such costs
        are allocable to the Borrowers with respect to the existence of such Lender’s
        Loans or commitment to lend hereunder and provided  further that
        such Lender shall only be required to take such actions if it determines
        in good
        faith that such actions would not be disadvantageous to it, and (ii) the
        Borrowers shall not be required to compensate a Lender under SECTION
        4.03(a) and (b) for any
        costs or additional amounts arising more than 180 days prior to the date
        that
        such Lender notifies the Administrative Borrower of the event giving rise
        to
        such costs and amounts of such Lender’s intention to claim compensation therefor
        and, if the event giving rise to such increased costs and amounts is
        retroactive, then the 180-day period referred to in this clause (ii) shall
        be extended to include the period of retroactive effect therefor.
  50
  (d) Notwithstanding
        anything to the contrary contained herein, if the adoption or implementation
        of,
        or any change in, any Applicable Law shall make it unlawful, or any central
        bank
        or other Governmental Authority shall assert that it is unlawful, for any
        Lender
        to agree to make or to continue to fund or maintain any LIBOR Rate Loan,
        then,
        unless that Lender is able to make or to continue to fund or to maintain
        such
        LIBOR Rate Loan at another branch or office of that Lender without, in that
        Lender’s opinion, adversely affecting it or its LIBOR Rate Loans or the income
        obtained therefrom, on notice thereof and demand therefor by such Lender
        to the
        Administrative Borrower through the Administrative Agent, (i) the
        obligation of such Lender to make, to continue to fund or maintain LIBOR
        Rate
        Loans shall terminate, and (ii) each outstanding LIBOR Rate Loan owing by
        the Borrowers to such Lender shall automatically be converted to a Base Rate
        Loan and the Borrowers shall pay any amounts due pursuant to SECTION
        4.02 .
  SECTION
        4.04 Fees .
        The
        Borrowers hereby agree to pay to the Administrative Agent, for the account
        of
        the Lenders in accordance with their Pro Rata Shares, the following
        amounts:
  (a) a
        fee
        (the “ Unused
        Commitment Fee ”)
        in an
        amount equal to 0.50% per annum times the
        Maximum Revolver Amount minus the
        Aggregate Revolver Exposure at such time. The Unused Commitment Fee shall
        be
        non-refundable and paid in Dollars monthly in arrears and on the date of
        the
        termination or expiration of the Commitments; and
  (b) the
        Administrative Agent, for the account of the Lenders, a fee (the “ L/C
        Fee” )
        in an
        amount equal to 2.00% times the
        undrawn amount of all outstanding Letters of Credit, payable in Dollars monthly
        in arrears and on the date of the termination, draw or expiration of each
        Letter
        of Credit .
  (c) In
        addition, the Borrowers hereby agree to pay the fees and expenses, if any,
        set
        forth in the Agents’ Fee Letter and in Annex A hereto.
  51
  ARTICLE
        V
 CONDITIONS
        TO LOANS
  SECTION
        5.01 Conditions
        Precedent to the Funding
        on the Closing Date . The
        obligation of each Lender to make the Loans requested, and the Obligation
        of any
        L/C Issuer to issue Letters of Credit to be made by it on the Closing Date
        or a
        Funding Date shall be subject to the satisfaction, or waiver by each of the
        Agents, of each of the following conditions precedent:
  (a) Authority .
        The
        Administrative Agent shall have received certified copies of all resolutions,
        certificates and other documents evidencing other necessary corporate action
        and
        governmental approvals, if any, with respect to the authorization for the
        execution, delivery and performance of each Loan Document by a Credit Party
        and
        for the consummation of the transactions contemplated thereby. All certificates
        shall state that the resolutions or other information referred to in such
        certificates have not been amended, modified, revoked or rescinded as of
        the
        Closing Date.
  (b) Loan
        Documents .
        The
        Administrative Agent shall have received, on the Closing Date, counterparts
        of
        each of the following documents duly executed and delivered by each party
        thereto, and in full force and effect and reasonably satisfactory to the
        Administrative Agent:
  (i) this
        Agreement and the Term Credit Agreement;
  (ii) the
        Notes, if any;
  (iii) the
        Security Documents;
  (iv) such
        corporate resolutions, certificates and other documents as the Administrative
        Agent reasonably requests;
  (v) the
        Agents’ Fee Letter;
  (vi) the
        Intercreditor Agreement; and
  (vii) each
        other Loan Document, in each case duly executed and delivered by the parties
        thereto and dated no later than the Closing Date, except for those Loan
        Documents that are dated prior to the Closing Date and have been delivered
        prior
        to the Closing Date to the Agents by the Credit Parties.
  (c) Perfection
        of Liens and Security .
        All
        Obligations shall be secured by perfected, first-priority (subject only to
        Permitted Encumbrances) liens and security interests in the Collateral pursuant
        to the Security Agreement and other Security Documents, in form and substance
        satisfactory to the Administrative Agent; provided  that such
        liens and security interests shall have the priorities specified in the
        Intercreditor Agreement. All Collateral shall be free and clear of other
        liens,
        claims and encumbrances other than Permitted Encumbrances and the Administrative
        Agent shall have received UCC, tax, judgment and other lien searches in form
        and
        substance satisfactory to the Administrative Agent as confirmation thereof.
        The
        Collateral Agent, on behalf of the Lenders, shall have a perfected
        first-priority lien and security interest in the Revolving Priority Collateral
        and a perfected second priority lien and security interest in all other
        Collateral; all filings, recordations and searches necessary or desirable
        in
        connection with such liens and security interests shall have been duly made
        or
        arranged for; and all filing and recording fees and taxes shall have been
        duly
        paid.
  52
  (d) No
        Material Adverse Effect .
        There
        shall not have occurred any event, circumstance, change or condition since
        September 30, 2006, which could reasonably be expected to have a Material
        Adverse Effect.
  (e) Minimum
        Consolidated EBITDA .
        The
        Administrative Agent shall have received evidence reasonably satisfactory
        to it
        demonstrating that the Consolidated EBITDA of the Borrowers and their
        Subsidiaries for the twelve months ending December 31, 2006 was not less
        than
        $40,000,000.
  (f) Litigation .
        Except
        as set forth in Schedule
        6.01(f) ,
        there
        shall exist no action, suit, claim, investigation, arbitration, litigation
        or
        proceeding or any judgments, decrees, injunctions, rules or orders of any
        governmental or regulatory agency or authority pending or, to the knowledge
        of
        the Credit Parties, threatened against or affecting any Credit Party or its
        property or assets, except for any of the foregoing that could, individually
        or
        in the aggregate, reasonably be expected to have a Material Adverse
        Effect.
  (g) Consents,
        Etc. Each
        Credit Party shall have received all consents and authorizations required
        pursuant to any Material Contract with any other Person and all other material
        consents and shall have obtained all material Permits of, or approvals from,
        and
        effected all notices to and filings with, any Governmental Authority as may
        be
        necessary to allow such Credit Party lawfully (i) to execute, deliver and
        perform, in all material respects, their respective obligations under the
        Loan
        Documents to which each of them is, or shall be, a party and each other
        agreement or instrument to be executed and delivered by each of them pursuant
        thereto or in connection therewith, (ii) consummate the transactions
        contemplated hereunder and under the other Loan Documents, and (iii) create
        and perfect the Liens on the Collateral to be owned by each of them to the
        extent, in the manner and for the purpose contemplated by the Loan Documents.
        Each Credit Party shall have received all shareholder, Governmental and material
        third-party consents, licenses, approvals, or evidence of other actions
        necessary (without the imposition of any conditions that are not acceptable
        to
        the Lenders), other than with respect to the Leases identified on Schedule 5.01(g) for
        which the Credit Parties shall use commercially reasonable efforts to obtain
        such third-party consents, licenses and approvals, in connection with the
        execution and delivery of the Loan Documents, and the performance thereunder
        and
        the transactions contemplated by the Loan Documents and any applicable waiting
        period shall have expired without any action being taken. No litigation shall
        be
        pending or threatened and no action shall have been taken or threatened by
        any
        Governmental Authority that could restrain, prevent or impose any material
        adverse conditions on such Credit Party or such transactions or that could
        seek
        to restrain or threaten any of the foregoing, and no law or regulation shall
        be
        applicable which in the reasonable judgment of the Administrative Agent could
        have such effect.
  (h) Solvency .
        Immediately prior to the incurrence of the Loans on the Closing Date, and
        after
        giving effect to such Loans, and use of the proceeds of the Loans, the Credit
        Parties, taken as a whole, shall be Solvent and the Administrative Agent
        shall
        have received a solvency certificate from the chief financial officer of
        the
        Administrative Borrower, on behalf of the Credit Parties (and not in such
        officer’s individual capacity), dated the Closing Date, in a form reasonably
        satisfactory to the Administrative Agent.
  53
  (i) Insurance .
        The
        Agents shall have received (i) evidence of endorsements in form and substance
        reasonably acceptable to the Agents, naming the Collateral Agent and the
        collateral agent under the Term Credit Agreement, as applicable, on behalf
        of
        the Lenders, as an additional insured and loss payee as applicable under
        all
        insurance policies to be maintained with respect to the properties of the
        Credit
        Parties forming part of the Collateral, and (ii) evidence that all insurance
        policies required to be maintained pursuant to SECTION
        7.05 ,
        including any insurance policies with respect to the properties of each Credit
        Party forming part of the Collateral, are in full force and effect.
  (j) Opinions
        of the Borrowers’ Counsel .
        The
        Lenders shall have received customary opinions (including noncontravention
        opinions with respect to the Indenture and other Material Contracts) of
        Kilpatrick Stockton LLP, counsel to the Borrowers and the Guarantors, and
        such
        local counsel as Administrative Agent may reasonably require, each in form
        and
        substance satisfactory to each of the Agents.
  (k) Fees
        and Expenses Paid .
        There
        shall have been paid to the Administrative Agents all fees and, to the extent
        documented, expenses (including the reasonable legal fees of counsel to each
        of
        the Agents and any local counsel to the Agents) due and payable on or before
        the
        Closing Date.
  (l) Collateral
        Information .
        The
        Collateral Agent shall have received (i) a letter duly executed by each Credit
        Party authorizing the Collateral Agent to file appropriate financing statements
        in such offices as may be necessary or, in the opinion of the Collateral
        Agent,
        desirable to perfect the security interests on the Collateral to be created
        by
        the Loan Documents, and (ii) complete and accurate information from each
        Credit
        Party with respect to its organization, capitalization, name, locations,
        tax
        identification number and the location of the principal place of business
        and
        chief executive office for such Credit Party.
  (m) Good
        Standing Certificates .
        The
        Administrative Agent shall have received, on the Closing Date, governmental
        certificates, dated the most recent practicable date prior to the Closing
        Date,
        showing that each Credit Party is organized and in good standing in the
        jurisdiction of its organization, and is qualified as a foreign corporation
        and
        in good standing in all other jurisdictions in which it is qualified to transact
        business except where the failure to so qualify could not reasonably be expected
        to have Material Adverse Effect.
  (n) Organizational
        Documents .
        The
        Administrative Agent shall have received, on the Closing Date, a copy of
        the
        certificate of incorporation or certificate of formation, as applicable,
        and all
        amendments thereto of each Credit Party, certified as of a recent date by
        the
        appropriate government official of the jurisdiction of its organization,
        and
        copies of each Credit Party’s by-laws or limited liability company agreement, as
        applicable, certified by the Secretary, Assistant Secretary or managing member,
        as applicable, of such Credit Party as true and correct as of the Closing
        Date.
  54
  (o) Financial
        Statements .
        The
        Administrative Agent shall have received the 2005 Financial Statements and
        the
        2006 Financial Statements, together with the financial statements and
        projections described in SECTION
        6.01(g)(ii) and SECTION
        7.01 ,
        all in
        form and substance reasonably satisfactory to the Administrative
        Agent.
  (p) Certificates .
        (i) The Administrative Agent shall have received, on the Closing Date,
        certificates of the Secretary, Assistant Secretary or managing member of
        each
        Credit Party, dated the Closing Date, as to the incumbency and signatures
        of its
        officers executing this Agreement and each other Loan Document to which such
        Credit Party is a party and any other certificate or other document to be
        delivered pursuant hereto or thereto, together with evidence of the incumbency
        of such Secretary, Assistant Secretary or managing member.
  (ii) The
        Administrative Agent shall have received, on the Closing Date, the certificate
        of a Senior Officer of each Credit Party, dated the Closing Date, stating
        that
        (A) to the knowledge of such officer and on behalf of such Credit Party
        (not in such officer’s individual capacity) all of the representations and
        warranties of such Credit Party contained herein or in any of the other Loan
        Documents are true and correct in all material respects on and as of the
        Closing
        Date as if made on such date, (B) that no breach of any covenant contained
        in ARTICLE
        VIII , ARTICLE
        IX ,
        or ARTICLE
        X has
        occurred or would result from the execution, delivery of and performance
        under
        this Agreement and the transactions contemplated hereunder, (C) that all of
        the conditions set forth in this SECTION
        5.01(p)(ii) have
        been satisfied on such date (or shall, to the extent permitted therein, be
        satisfied substantially simultaneously with the incurrence of Loans on the
        Closing Date) ;
        (D) there has been no repayment of Indebtedness that (i) would reduce the
        one hundred and twenty five million Dollar ($125,000,000) amount permitted
        for
        credit facilities under Section 4.03(a)(1) of the Indenture, or
        (ii) would reduce the ten million Dollar ($10,000,000) amount permitted for
        credit facilities under Section 4.03(a)(10) of the Indenture or specify
        such amounts and (E) there is no other Indebtedness that would reduce the
        permitted amounts or specify all such amounts (other than Indebtedness that
        is
        subject to the Indenture Reserve).
  (q) Representations
        and Warranties .
        Both
        before and after giving effect to the Loans to be made on the Closing Date,
        as
        the case may be, all of the representations and warranties of any Credit
        Party
        contained in ARTICLE
        VI and in
        the other Loan Documents shall be true and correct in all material respects
        (except to the extent such representations and warranties specifically relate
        to
        an earlier date, in which case such representations and warranties shall
        be true
        and correct as of such earlier date).
  (r) No
        Defaults .
        No
        Event of Default or Default, and no default under any other Loan Document,
        shall
        have occurred and be continuing or would result from the execution and delivery
        of, or the performance under, the Loan Documents, or making the requested
        Loans
        or the application of the proceeds therefrom.
  (s) Excess
        Availability .
        The
        Credit Parties shall have an Availability, measured as of the Closing Date,
        greater than or equal to twenty-five million Dollars ($25,000,000) after
        giving
        effect to the initial use of proceeds of the Loans.
  55
  (t) Field
        Examination .
        The
        Administrative Agent shall have received evidence satisfactory to it of the
        completion of a Field Examination (as set forth in SECTION
        8.04(b) ),
        with
        the results of such Field Examination satisfactory to it.
  (u) Mortgaged
        Properties .
        The
        Administrative Agent shall have received:
  (i) fully
        executed and notarized Mortgages, in proper form for recording in each
        applicable jurisdiction, encumbering each Mortgaged Property;
  (ii) an
        opinion of counsel (which counsel shall be reasonably satisfactory to the
        Administrative Agent) in each state in which a Mortgaged Property is located
        with respect to the enforceability of the Mortgage to be recorded in such
        state
        and such other matters as the Administrative Agent may reasonably request,
        in
        each case in form and substance reasonably satisfactory to the Administrative
        Agent; and
  (iii) such
        other information, documentation, and certifications as may be reasonably
        required by the Administrative Agent.
  (v) Cash
        Management .
  (i) The
        Credit Parties shall have established and maintained cash management services
        of
        a type and on terms satisfactory to the Collateral Agent at one or more of
        the
        banks set forth on Schedule 6.01(v) (each a
“ Cash
        Management Bank ”),
        and
        shall have requested in writing and otherwise taken such reasonable steps
        to
        ensure that all of their domestic Account Debtors with respect to Accounts
        forward payment of the amounts owed by them directly to a bank account (each
        such account, a “ Cash
        Management Account ”)
        subject to a Control Agreement at such Cash Management Bank.
  (ii) Each
        Cash
        Management Bank shall have established and maintained cash management agreements
        (each a “ Cash
        Management Agreement ”)
        with
        the Collateral Agent covering the Deposit Accounts of each Credit Party,
        in form
        and substance reasonably acceptable to each of the Agents, provided , however ,
        that
        Deposit Accounts that are disbursement accounts and that either (A) have
        an
        average daily balance of less than $100,000, or (B) are accounts for payment
        of
        the workers compensation claims and employment claims, shall be excluded
        from
        the requirement for Cash Management Agreements, so long as the aggregate
        amount
        of such excluded Deposit Accounts does not exceed $1,000,000 in the aggregate
        at
        any time. Each such Cash Management Agreement shall have provided, among
        other
        things, that (A) the Cash Management Bank will comply with any instructions
        originated by the Collateral Agent directing the disposition of the funds
        in
        such Cash Management Account without further consent by the Credit Parties,
        (B)
        the Cash Management Bank has no rights of setoff or recoupment or any other
        claim against the applicable Cash Management Account, other than for payment
        of
        its service fees and other charges directly related to the administration
        of
        such Cash Management Account and for returned checks or other items of payment,
        and (C) it will, following notice from the Collateral Agent, forward by daily
        sweep all amounts in the collection Cash Management Accounts to the Collateral
        Agent’s account.
  56
  (iii) The
        Cash
        Management Accounts shall be subject to Control Agreements.
  (w) Legal
        Due Diligence .
        The
        Administrative Agent shall have completed confirmatory legal due diligence
        satisfactory to it with respect to the transactions contemplated by the Loan
        Documents, including confirmation that the Loans are permitted under the
        Indenture.
  (x) Term
        Loan Documents .
        The
        Term Credit Agreement and all documents related thereto, including the
        Intercreditor Agreement shall be in form and substance satisfactory to the
        Administrative Agent and shall close on or before the Closing Date.
  (y) Other
        Documents .
        The
        Administrative Agent shall have received a payoff letter evidencing repayment
        of
        the obligations under the Prior Credit Agreement; consent and collateral
        access
        agreements for properties leased by the Credit Parties from KRP, delivery
        of the
        funds flow memo, in each case in form and substance satisfactory to the
        Administrative Agent.
  SECTION
        5.02 Conditions
        Precedent to Revolving Advances and Issuances of Letters of
        Credit . The
        obligation of the Lenders to make any Revolving Advance or the L/C Issuer
        to
        issue any Letters of Credit requested to be made by it on any Funding Date,
        shall be subject to the satisfaction of all of the conditions precedent
        specified in SECTION
        5.01 and the
        following additional conditions:
  (a) Representations
        and Warranties .
        As of
        such Funding Date, both before and after giving effect to the Loans to be
        made
        on such date or the issuance of the Letters of Credit to be issued on such
        date,
        as the case may be, all of the representations and warranties of any Credit
        Party contained in ARTICLE
        VI and in
        the other Loan Documents shall be true and correct in all material respects
        (except, in the case of Loans funded after the Closing Date, to the extent
        such
        representations and warranties specifically relate to an earlier date, in
        which
        case such representations and warranties shall be true and correct as of
        such
        earlier date).
  (b) No
        Defaults .
        As of
        such Funding Date, no Default or Event of Default shall have occurred and
        be
        continuing or would result from the execution and delivery of, or the
        performance under, the Loan Documents, the issuance of the requested Letters
        of
        Credit, or making the requested Loan or the proposed purpose or application
        thereof.
  (c) No
        Change in Condition .
        There
        shall not have occurred any event or condition since September 30, 2006
        which could reasonably be expected to have a Material Adverse
        Effect.
  (d) No
        Legal Impediment .
        No
        injunction, writ, restraining order, or other order of any nature (whether
        temporary, preliminary or permanent) restricting or prohibiting, directly
        or
        indirectly, the extending of such credit shall have been issued and remain
        in
        force by any Governmental Authority against the Borrowers, any Agent or any
        Lender, and such extension of credit shall not violate any requirement of
        Applicable Law.
  (e) Each
        request by the Borrowers for a Loan, each submission by the Borrowers of
        a
        Borrowing Request or a request for a Letter of Credit, and each acceptance
        by
        the Borrowers of the proceeds of each Loan made hereunder shall be accompanied
        by a Borrowing Request and constitute a representation and warranty by the
        Borrowers, as of the Funding Date in respect of such Loan, or the issuance
        date
        of a Letter of Credit, as the case may be, that all conditions set forth
        in this SECTION
        5.02 have
        been satisfied.
  57
  ARTICLE
        VI
 REPRESENTATIONS
        AND WARRANTIES
  SECTION
        6.01 Representations
        and Warranties .
        In
        order to induce the Lenders to enter into this Agreement and to make the
        Loans
        or issue the Letters of Credit, as the case may be, each Credit Party hereby
        represents and warrants as follows:
  (a) Organization,
        Good Standing, Etc. Each
        Credit Party (i) is a corporation or limited liability company duly
        organized, validly existing and in good standing under the laws of the
        jurisdiction of its organization, (ii) has all requisite power and
        authority to conduct its business as now conducted and as presently
        contemplated, to make the borrowings hereunder (in the case of the Borrower),
        to
        execute and deliver each Loan Document to which it is a party, and to consummate
        the transactions contemplated thereby, and (iii) except where failure to do
        so, individually or in the aggregate, could not reasonably be expected to
        have a
        Material Adverse Effect, is duly qualified to do business and is in good
        standing in each jurisdiction in which the character of the properties owned
        or
        leased by it or in which the transaction of its business makes such
        qualification necessary for its business as currently conducted.
  (b) Authorization,
        Etc. The
        execution, delivery and performance by each Credit Party of each Loan Document
        to which it is or will be a party and the transactions contemplated thereunder,
        (i) have been or, with respect to such Credit Parties formed or acquired
        hereafter, will be, duly authorized by all necessary corporate, limited
        liability company or partnership action, as applicable, (ii) do not and
        will not contravene its Governing Documents, any Material Contract, any Coal
        Supply Agreement or Mining Permit, (iii) do not and will not violate any
        Requirements of Law binding on or otherwise affecting it, any of its
        Subsidiaries or any of its properties or its Subsidiaries’ properties, except in
        each case under this clause (iii) where failure to do so, individually or
        in the
        aggregate, could not reasonably be expected to have a Material Adverse Effect,
        and (iv) do not and will not result in or require the creation of any Lien
        (other than pursuant to any Loan Document) upon or with respect to any of
        its
        properties or its Subsidiaries’ properties. Each Credit Party has the requisite
        corporate, limited liability company or partnership power and authority,
        as
        applicable, to execute, deliver and perform each of the Loan Documents to
        which
        it is a party.
  (c) Governmental
        Approvals .
        No
        material authorization or approval or other action by, and no notice to or
        filing with, any Governmental Authority that has not been obtained is required
        in connection with the due execution, delivery and performance by each Credit
        Party of each Loan Document to which it is a party.
  (d) Enforceability
        of Loan Documents .
        Each of
        the Loan Documents to which a Credit Party is a party has been duly executed
        and
        delivered by such Credit Party and constitutes the legal, valid and binding
        obligation of such Credit Party, enforceable against such Credit Party in
        accordance with its terms, except as may be limited by applicable bankruptcy,
        insolvency, reorganization, moratorium or other similar laws, or by general
        principles of equity (regardless of whether enforcement is sought in a
        proceeding at law or in equity).
  58
  (e) Capitalization .
        On the
        Closing Date, the authorized, issued and outstanding Equity Interests of
        each
        Credit Party are as set forth on Schedule 6.01(e) .
        All of
        the issued and outstanding shares of Equity Interests of each Credit Party
        have
        been validly issued and, to the extent applicable, are fully paid and
        nonassessable, and the holders thereof are not entitled to any preemptive,
        first
        refusal or other similar rights. Schedule 6.01(e) sets
        forth each plan pursuant to which shares of the Equity Interests of the Credit
        Parties are issuable as of the Closing Date, copies of which plans have been
        delivered to the Administrative Agent under this Agreement, in the form and
        on
        the terms in effect on the Closing Date, and the number of shares of Equity
        Interests of each of the Credit Parties issuable under each such plan. Except
        as
        set forth on Schedule 6.01(e) ,
        there
        are no other plans or arrangements in existence relating to the issuance
        of
        shares of Equity Interests of a Credit Party. Except as set forth on Schedule 6.01(e) ,
        as of
        the Closing Date, there are no outstanding debt or equity securities of a
        Credit
        Party, and no outstanding obligations of a Credit Party convertible into
        or
        exchangeable for, or warrants, options or other rights for the purchase or
        acquisition from a Credit Party or other obligations of a Credit Party, to
        issue, directly or indirectly, Equity Interests of any such Person.
  (f) Litigation .
        Except
        as set forth on Schedule
        6.01(f) ,
        there
        is no pending or, to the knowledge of such Credit Party, threatened action,
        suit
        or proceeding affecting any Credit Party or any of their respective properties
        or assets before any court or other Governmental Authority or any arbitrator
        that, individually or in the aggregate, (i) could reasonably be expected to
        have a Material Adverse Effect, or (ii) purports to affect the legality,
        validity or enforceability of any Loan Document or the consummation of the
        Loans
        evidenced hereby and by the other Loan Documents.
  (g) Financial
        Condition; Material Adverse Effect .
  (i) The
        2005
        Financial Statements and the 2006 Financial Statements, copies of which have
        been delivered to the Administrative Agent, and any financial statements
        delivered pursuant to SECTION
        7.01 ,
        fairly
        present, in all material respects, the consolidated financial condition of
        the
        Credit Parties as at the respective dates thereof and the consolidated results
        of operations of the Credit Parties for the fiscal periods ended on such
        respective dates, all in accordance with GAAP (subject to normal year-end
        adjustments and absence of footnotes in the case of any quarterly and monthly
        statements).
  (ii) The
        Administrative Borrower has furnished, on behalf of the Credit Parties, to
        the
        Administrative Agent under this Agreement (A) projected monthly balance
        sheets, income statements and statements of cash flows for the period from
        January 1, 2007 through December 31, 2007, and (B) projected
        annual balance sheets, income statements and statements of cash flows for
        each
        subsequent Fiscal Year ending on or prior to December 31, 2012. Such projections
        are based upon assumptions that are reasonably believed by the Credit Parties
        to
        have been reasonable at the time made (it being understood that any such
        forecasts or projections are subject to significant uncertainties and
        contingencies, many of which are beyond the Credit Parties’ control, that no
        assurance can be given that any such forecasts or projections will be realized
        and that actual results may differ from any such forecasts or projections
        and
        such differences may be material) and have been prepared in good faith by
        the
        Credit Parties.
  59
  (iii) Since
        September 30, 2006, no event or development has occurred and is continuing
        that
        has had or could reasonably be expected to have a Material Adverse
        Effect.
  (h) Compliance
        with Law, Etc. No
        Credit Party is in violation of its Governing Documents, any Requirements
        of Law
        (other than violations which, individually or in the aggregate, have not
        had and
        could not reasonably be expected to have a Material Adverse Effect), any
        judgment or order of any Governmental Authority applicable to it or any of
        its
        property or assets, or any Material Contract binding on it or any of its
        properties (other than violations which, individually or in the aggregate,
        could
        not reasonably be expected to have a Material Adverse Effect). The Credit
        Parties have policies in place to observe the requirements of the Patriot
        Act
        related requirements consistent with U.S. Industry practice.
  (i) ERISA .
        Neither
        the Credit Parties nor any ERISA Affiliate has (i) any “accumulated funding
        deficiency” (within the meaning of Section 412 of the Code and
        Section 302 of ERISA), whether or not waived, with respect to any Benefit
        Plan, (ii) failed to make any contribution or payment to any Benefit Plan
        which has resulted, or could reasonably be expected to result, in the imposition
        of a Lien or the posting of a bond or other security under Section 302(f)
        of ERISA or Section 401(a)(29) of the Code, (iii) incurred, or is
        reasonably likely to incur, any material liability under Title IV of ERISA
        (other than a liability to the Pension Benefit Guaranty Corporation (or
“ PBGC ”)
        for
        premiums under Section 4007 of ERISA), or (iv) violated any provision
        of ERISA that individually or in the aggregate can reasonably be expected
        to
        result in a material liability to the Credit Parties taken as a whole. Neither
        the Credit Parties nor any ERISA Affiliate participates in or is obligated
        to
        contribute to a Multiemployer Plan or any Plan other than a Benefit Plan,
        except
        as specified on Schedule 6.01(i) .
  (j) Taxes,
        Etc. All
        Federal, and all material state, provincial and local tax returns and other
        material reports required by Applicable Law to be filed by any Credit Party
        have
        been filed, or extensions have been obtained, except to the extent subject
        to a
        Permitted Protest, and all taxes shown on such tax returns to be due and
        payable
        and all assessments, fees and other governmental charges upon such Credit
        Party
        and upon its properties, assets, income, businesses and franchises that are
        due
        and payable have been paid when due and payable; except to the extent subject
        to
        a Permitted Protest.
  (k) Margin
        Regulations .
        No
        proceeds of any Loan will be used for any purpose that violates, or which
        is
        inconsistent with, the provisions of Regulation T, U or X of the Board of
        Governors of the Federal Reserve System of the United States, as in effect
        from
        time to time.
  (l) Permits .
        Such
        Credit Party has, and is in compliance with, all permits, licenses,
        authorizations, approvals, entitlements and accreditations (collectively,
        the
“ Permits ”)
        and
        Mining Permits required for such Person lawfully to own, lease, manage or
        operate each business and Property currently owned, leased, managed or operated
        by such Person, except where the failure to have or to so comply, individually
        or in the aggregate, could not reasonably be expected to have a Material
        Adverse
        Effect. No condition exists or event has occurred which, in itself or with
        the
        giving of notice or lapse of time or both, would result in the suspension,
        revocation, impairment, forfeiture or non-renewal of any Permit, and there
        is no
        claim that any thereof is not in full force and effect, except, in each case,
        with respect to any Permits the loss of which, individually or in the aggregate,
        could not reasonably be expected to have a Material Adverse Effect.
  60
  (m) Personal
        Property .
        Each
        Credit Party has good and marketable title to, or valid leasehold interests
        in
        all Property material to its business, except for minor defects in title
        that
        could not reasonably be expected to interfere with its ability to conduct
        its
        business as currently conducted or as proposed to be conducted, free and
        clear
        of all Liens except Permitted Encumbrances. All such Properties are in good
        working order and condition, ordinary wear and tear excepted, except to the
        extent that the failure be in such condition could not, individually or in
        the
        aggregate, reasonably be expected to have a Material Adverse
        Effect.
  (n) Real
        Estate .
  (i) Owned
        Real Estate . Schedule 6.01(n)(i) sets
        forth the address (or, in respect of any properties that have no addresses,
        legal descriptions with book and page number references) of each Real Estate
        Asset (including the Mortgaged Properties) that is owned by a Credit Party
        as of
        the Closing Date. Except as set forth on such Schedule, no Credit Party owns
        any
        Real Estate Assets. Except as set forth on such Schedule, no Credit Party
        owns
        any Mines.
  (ii) Mines . Schedule 6.01(n)(ii) sets
        forth a complete and accurate list of all Mines (including addresses (or,
        in
        respect of any properties that have no addresses, locations) and the owner
        and
        operator thereof) owned or operated by a Credit Party as of the Closing Date.
        Except as set forth on such Schedule, no Credit Party leases any
        Mines.
  (iii) Leases . Schedule 6.01(n)(iii) sets
        forth a complete and accurate list of all (A) Mining Leases (including
        addresses (or, in respect of any properties that have no addresses, locations)
        of the subject coal reserves and the lessor thereof), and (B) all Prep
        Plant Leases (including addresses (or in respect of any properties that have
        no
        addresses, locations) of the subject properties and lessor thereof) and
        (C) all other Leases. Except as set forth on such Schedule, no Credit Party
        is a party to any Lease that constitutes a Material Contract.
  (iv) Permits .
        With
        respect to each Mining Lease and each Prep Plant Lease, a Credit Party possesses
        all leasehold interest mining rights and Mining Permits necessary for the
        operation of the applicable Mine or Coal Handling Facility, as the case may
        be,
        currently being operated on such parcel, and each of its rights under all
        applicable Mining Permits, contracts, rights-of-way and easements necessary
        for
        the operation of such Mine or such Coal Handling Facility, as the case may
        be,
        is in full force and effect and no default exists thereunder, except to the
        extent that such defaults or the failure to maintain such lease, mining rights,
        Mining Permits, contracts, rights of way and easements in full force and
        effect
        has not had and could not reasonably be expected to result in a Material
        Adverse
        Effect on the operation and intended use of such parcel by the Credit
        Parties.
  61
  (v) Title .
        Each
        Credit Party has, and is the sole owner of, good, insurable and marketable
        fee
        simple title to all of its owned Real Estate Assets and a good and valid
        leasehold estate and title in and to its leased Real Estate Assets, and has
        all
        necessary right, power and authority to mortgage, encumber, give, grant,
        bargain, sell, convey, confirm, pledge, assign, and hypothecate all of the
        Real
        Estate Assets in accordance with the terms of this Agreement, and none of
        its
        Real Estate Assets are subject to Liens other than Permitted
        Encumbrances.
  (vi) No
        Defaults Under Material Contracts .
        The
        Administrative Borrower has delivered to the Administrative Agent a true
        and
        complete copy of each Material Contract. As of the Closing Date, no Material
        Contract shall have been further amended, modified, extended or supplemented
        in
        any way. Each Material Contract is in full force and effect and no Credit
        Party
        has any knowledge of any default that has occurred and is continuing thereunder.
        Each Material Contract constitutes the legally valid and binding obligation
        of
        each applicable Credit Party, enforceable against such Credit Party in
        accordance with its terms, except as enforcement may be limited by bankruptcy,
        insolvency, reorganization, moratorium or similar laws relating to or limiting
        creditors’ rights generally or by equitable principles.
  (vii) Restrictions
        on Use .
        No part
        of any Real Estate Asset is subject to any building or use restrictions that
        would prevent or interfere in any material respect with the current use and
        operation of such Real Estate Asset in any material respect. Each Real Estate
        Asset is properly and duly zoned for its current use, and such current use
        is in
        all material respects a conforming use or a non-conforming use permitted
        by
        variance or other Applicable Law. No Governmental Authority having jurisdiction
        over any Real Estate Asset has issued or, to the knowledge of any Credit
        Party,
        has threatened to issue any notice or order that adversely affects in any
        material respect the use or operation of such Real Estate Asset, or requires,
        as
        of the date hereof or a specified date in the future, any material repairs,
        alterations, additions or improvements to such Real Estate Asset, or the
        payment
        or dedication of any money, fee, exaction or property other
        than amounts (such as taxes and utility charges) due in the ordinary course
        of
        the ownership, use or operation of such Real Estate Asset.
  (viii) Condemnation .
        As of
        the Closing Date, there are neither any actual, nor, to the knowledge of
        any
        Credit Party, any threatened or contemplated condemnation or eminent domain
        proceedings that affect any Real Estate Asset or any part thereof, except
        to the
        extent that such proceedings, individually or in the aggregate, could not
        reasonably be expected to have a Material Adverse Effect, and no Credit Party
        has received any notice, oral or written, of the intention of any Governmental
        Authority or other Person to take or use all or any part thereof.
  62


(ix) Mechanics’
        Liens .
        No
        labor has been performed and no material has been furnished for any portion
        of
        any Real Estate Asset for which full payment has not been made and for which
        a
        mechanic’s or materialmen’s lien, or any other Lien, can be claimed by any
        Person, other than Permitted Encumbrances.
  (x) Encroachments .
        No
        improvements constituting a part of such Real Estate Asset encroach on any
        real
        property not owned or leased by a particular Credit Party.
  (xi) Repairs
        and Alterations .
        As of
        the Closing Date, no Credit Party has received any notice from any insurance
        company which has issued an insurance policy with respect to any Real Estate
        Asset requesting performance of any structural or other repairs or alterations
        to such Real Estate Asset.
  (xii) Access
        to Public Streets .
        Each
        parcel (or group of parcels) comprising each Real Estate Asset is located
        on
        public roads and streets with adequate ingress and egress available between
        such
        streets and such Real Estate Asset or otherwise has access to public roads
        and
        streets pursuant to access easements benefiting such Real Estate Asset and
        that
        are Mortgaged Properties.
  (xiii) Utilities .
        All
        utility systems required in connection with the use, occupancy and operation
        of
        each Real Estate Asset are sufficient for their present purposes, are fully
        operational and in working order, and are benefited by customary utility
        easements providing for the continued use and maintenance of such systems
        or, in
        the case of a leased Real Estate Asset, the Credit Party leasing the same
        has
        valid and enforceable rights to the same under the applicable Lease or
        otherwise.
  (xiv) Parking .
        Each
        Real Estate Asset consists of or otherwise has rights to use sufficient land,
        parking areas, sidewalks, driveways and other improvements to permit the
        continued use of such Real Estate Asset in the manner and for the purposes
        to
        which it is presently devoted.
  (xv) Non-Foreign
        Status .
        No
        Credit Party is a “foreign person” as defined in Section 1445 of the
        Code.
  (o) Full
        Disclosure .
        None of
        the reports, financial statements, certificates or other written information
        furnished by or on behalf of a Credit Party to the Administrative Agent or
        the
        Collateral Agent under this Agreement or any other Loan Document in connection
        with the negotiation of this Agreement or any other Loan Document or delivered
        hereunder or thereunder (as modified or supplemented by other information
        so
        furnished) contains any misstatement of fact or omits to state any fact
        necessary to make the statements therein, taken as a whole, in the light
        of the
        circumstances under which it was made, not materially misleading; provided  that to the
        extent any such reports, financial statements, certificates or other written
        information therein was based upon or constitutes a forecast or projection,
        such
        Credit Party represents only that the relevant Credit Party acted in good
        faith
        and utilized assumptions believed by it to be reasonable at the time made
        (it
        being understood that any such forecasts or projections are subject to
        significant uncertainties and contingencies, many of which are beyond the
        Credit
        Parties’ control, that no assurance can be given that any such forecasts or
        projections will be realized and that actual results may differ from any
        such
        forecasts or projections and such differences may be material). As of each
        Funding Date, there are no contingent liabilities or obligations that,
        individually or in the aggregate, could reasonably be expected to have a
        Material Adverse Effect.
  63
 (p) Environmental
        Matters .
        Except
        as set forth on Schedule 6.01(p) ,
        (i) the operations of each Credit Party are and have been in material
        compliance with all applicable Environmental Laws, (ii) there has been no
        Release on, in, at, to, from or under any of the properties currently or,
        to the
        knowledge of the Credit Parties, formerly, owned or operated by any Credit
        Party
        or a predecessor in interest for whom any Credit Party could be held liable
        that
        could reasonably be expected to result in any material Environmental Liabilities
        and Costs to any Credit Party, (iii) no Environmental Action has been
        asserted or threatened against any Credit Party which is unresolved, nor
        to the
        knowledge of any Credit Party are there any threatened Environmental Actions
        against a Credit Party that in either case could reasonably be expected to
        result in any material Environmental Liabilities and Costs to any Credit
        Party,
        (iv) to the knowledge of the Credit Parties no Environmental Action has
        been asserted against any facilities that have received Hazardous Materials
        generated by a Credit Party or any predecessor in interest for whom any Credit
        Party could be held liable that could reasonably be expected to result in
        any
        material Environmental Liabilities and Costs to any Credit Party, (v) none
        of the Credit Parties is subject to any outstanding order, decree, injunction
        or
        other agreement with any Governmental Authority or any indemnity or other
        agreement (other than routine permits, approvals, credit agreements and lease
        terms) imposing obligations with any third party relating to any Environmental
        Law that could reasonably be expected to result in any material Environmental
        Liabilities and Costs to any Credit Party, (vi) to the knowledge of any
        Credit Parties there are no other circumstances or existing conditions involving
        any Credit Party that could reasonably be expected to result in any such
        Credit
        Party becoming the subject of any Environmental Actions or material
        Environmental Liabilities and Costs including any restriction on the ownership,
        use, or transfer of any property in connection with any Environmental Law,
        and
        (vii) the Credit Parties made available to the Administrative Agent copies
        of all material environmental reports, studies, assessments and other material,
        non-privileged environmental documents in its possession relating to the
        Credit
        Parties and their current and former properties and operations.
  (q) Coal
        Act; Black Lung Act .
        Each
        Credit Party and each of their respective “related persons” (as defined in the
        Coal Act) are in compliance with the Coal Act and none of the Credit Parties
        or
        their respective related persons has any liability under the Coal Act except
        with respect to premiums or other payments required thereunder that have
        been
        paid when due, except if subject to a Permitted Protest. Each Credit Party
        is in
        compliance with the Black Lung Act, and no Credit Party has any liability
        under
        the Black Lung Act except with respect to premiums, contributions or other
        payments required thereunder that have been paid when due, except if subject
        to
        a Permitted Protest.
  (r) Coal
        Supply Agreements .
        Schedule 6.01(r) sets forth a complete and accurate list of each Coal Supply
        Agreement to which a Credit Party is a party as of the Closing Date, including
        the counterparty to each such agreement. As of the Closing Date, each such
        Coal
        Supply Agreement is in full force and effect and the Credit Parties are in
        compliance with their obligations thereunder, except to the extent that any
        such
        failure to be in full force and effect or in compliance could not reasonably
        be
        expected individually or in the aggregate to result in a Material Adverse
        Effect.
  64
 (s) Surety
        Bonds .
        All
        surety, reclamation and similar bonds required to be maintained by a Credit
        Party under any Requirement of Law or pursuant to any contractual obligation
        binding on any of them are in full force and effect and were not and will
        not be
        terminated, suspended, revoked or otherwise adversely affected as a result
        of
        the Loans; provided
        that (i) self-bonding permitted under any Requirement of Law prior to the
        Closing Date may be required to be replaced following the Closing Date with
        surety bonds, (ii) the cost of such bonds may be increased and
        (iii) certain of such bonds may be terminated, suspended or revoked, provided
        that ,
        taken
        together, the events specified in clauses (i), (ii) and (iii) above could
        not
        reasonably be expected to result in a Material Adverse Effect. All required
        guarantees of, and letters of credit with respect to, such surety, reclamation
        and similar bonds are in full force and effect except where such failure
        to be
        in full force and effect could not reasonably be expected to result in a
        Material Adverse Effect.
  (t) Insurance .
        Each
        Credit Party keeps its property adequately insured and maintains
        (i) insurance to such extent and against such risks, including fire, as is
        customary with companies in the same or similar businesses, (ii) workmen’s
        compensation insurance in the amount required by Applicable Law,
        (iii) public liability insurance, which shall include product liability
        insurance, but only to the extent and in the amount customary with companies
        in
        the same or similar business against claims for personal injury or death
        on
        properties owned, occupied or controlled by it, and (iv) such other
        insurance as may be required by law (including against larceny, embezzlement
        or
        other criminal misappropriation). Schedule 6.01(t) sets
        forth a list of all insurance maintained by such Credit Party on the Closing
        Date.
  (u) Solvency .
        Each
        Credit Party, taken as a whole, is and, after giving effect to each of the
        transactions contemplated by the Loan Documents, the Credit Parties, taken
        as a
        whole, will be, Solvent.
  (v) Location
        of Bank Accounts . Schedule 6.01(v) sets
        forth a complete and accurate list of all Deposit Accounts and Securities
        Accounts of the Credit Parties, together with a description thereof (i.e.,
        the
        bank or securities firm at which such Deposit Account or Securities Account
        is
        maintained and the account number and the purpose thereof). Except to the
        extent
        specified in Schedule
        6.01(v) ,
        or as
        specified in SECTION
        9.15 the
        Collateral Agent has a control agreement for each such Securities
        Account.
  (w) Intellectual
        Property . Schedule
        6.01(w) sets
        forth a true and complete list of all Registered Intellectual Property owned
        by
        the Credit Parties, indicating for each registered item the registration
        or
        application number and the applicable filing jurisdiction. The Credit Parties
        exclusively own (beneficially and of record, where applicable) all right,
        title
        and interest in and to all Registered Intellectual Property set forth on Schedule 6.01(w) free and
        clear of all Liens other than such exceptions as may be set forth in Schedule
        6.01(w) and own
        or have rights in and to all other Intellectual Property material to its
        business or used in the business of the Credit Parties. Except as could not,
        individually or in the aggregate, reasonably be expected to have a Material
        Adverse Effect (i) neither the Registered Intellectual Property set forth
        on Schedule
        6.01(w) nor any
        other Intellectual Property material to its business or used in the business
        of
        the Credit Parties is subject to any outstanding order, judgment or decree
        adversely affecting the Credit Parties’ use thereof or their rights thereto and,
        all of the rights of the Credit Parties in and to such Intellectual Property
        is
        valid, subsisting and enforceable; (ii) to the knowledge of the Credit
        Parties, the conduct of the Credit Parties does not infringe or otherwise
        violate the rights of any third party in any respect; (iii) the Credit
        Parties have sufficient rights to use all Intellectual Property material
        to
        their business and, all such Intellectual Property is Registered Intellectual
        Property; and (iv) there is no litigation, opposition, cancellation,
        proceeding, objection or claim pending, or, to the knowledge of the Credit
        Parties, asserted or threatened against the Credit Parties concerning the
        ownership, validity, registerability, enforceability, infringement or use
        of, or
        licensed right to use, any Intellectual Property, including the Registered
        Intellectual Property.
  65
 (x) Material
        Contracts .
        Set
        forth on Schedule
        M-1 is a
        complete and accurate list as of the Closing Date of all Material Contracts
        to
        which any Credit Party is a party showing the parties and subject matter
        thereof
        and amendments and modifications thereto. The Borrower has delivered true
        and
        complete copies of all Material Contracts, including all amendments thereto,
        to
        the Lenders. As of the Closing Date, each such Material Contract is in full
        force and effect and the Borrowers and their Subsidiaries are in compliance
        with
        their obligations thereunder, except to the extent that such failure to be
        in
        compliance could not, individually or in the aggregate, reasonably be expected
        to have a Material Adverse Effect. In addition the Credit Parties are in
        compliance with all other contractual obligations binding upon them, except
        to
        the extent that any such failure to be in compliance could not reasonably
        be
        expected individually or in the aggregate to result in a Material Adverse
        Effect.
  (y) Holding
        Company and Investment Company Acts .
        None of
        the Credit Parties is, or is controlled by, an “investment company” or an
“affiliated person” or “promoter” of, or “principal underwriter” of or for, an
“investment company” as such terms are defined in the Investment Company Act of
        1940, as amended.
  (z) Employee
        and Labor Matters .
        As of
        the Closing Date there is (i) no unfair labor practice complaint pending
        or, to the best of any Credit Party’s knowledge, threatened against any Credit
        Party before any Governmental Authority and no grievance or arbitration
        proceeding pending or, to the best of such Credit Party’s knowledge, threatened
        against any Credit Party which arises out of or under any collective bargaining
        agreement, and (ii) no strike, labor dispute, slowdown, stoppage or similar
        action or grievance pending or, to the best of such Credit Party’s knowledge,
        threatened against any Credit Party that, in the case of clause (i) or (ii)
        could reasonably be expected to have a Material Adverse Effect.
  (aa) Location
        of Collateral; Chief Place of Business; Chief Executive Office FEIN;
        Name .
        All of
        the Inventory is located on one of the locations listed on Schedule 6.01(aa)(1) .
        All of
        the Equipment is located on one of the locations listed on Schedule 6.01(aa)(2) . Schedules 6.01(aa)(1) and (2) contain
        a true, correct and complete list, as of the Closing Date, of the legal names
        and addresses of each warehouse at which the Inventory or Equipment, as the
        case
        may be, is stored. None of the receipts received by such Credit Party from
        any
        warehouse states that the goods covered thereby are to be delivered to bearer
        or
        to the order of a named Person or to a named Person and such named Person’s
        assigns. Schedule 6.01(aa)(3) sets
        forth a complete and accurate list as of the date hereof of (i) each place
        of business (other than a location that is only a sales office) of each Credit
        Party, (ii) the chief executive office of each Credit Party, (iii) the
        exact legal name of each Credit Party, (iv) the jurisdiction of
        organization of each Credit Party, (v) the organizational identification
        number of each Credit Party (or indicates that such Credit Party has no
        organizational identification number) and (vi) the federal employer
        identification number of such Credit Party. Attached hereto as Schedule
        6.01(aa)(4) is a
        schedule setting forth, with respect to each Mortgaged Property, the name
        of the
        Credit Party that owns or leases such property and the only filing office(s)
        in
        which a Mortgage and/or local UCC-1 financing statement with respect to such
        Credit Party and such property must be filed or recorded in order for the
        Collateral Agent to obtain a perfected mortgage lien and security interest
        in
        such Mortgaged Property.
  66
 (bb) Equipment;
        Inventory Records; Commercial Tort Claims .
        Each
        material item of Equipment of the Credit Parties is used or held for use
        in
        their business and is in good working order, ordinary wear and tear and damage
        by casualty excepted. Each Credit Party keeps correct and accurate records
        itemizing and describing the type, quality, and quantity of Inventory and
        the
        book value thereof in all material respects. As of the Closing Date, Schedule 6.01(bb) sets
        forth a true and complete list of all commercial tort claims of the Credit
        Parties.
  (cc) Security
        Interests .
        Each
        Security Document creates in favor of the Collateral Agent a legal, valid
        and
        enforceable security interest in the Collateral purported to be secured thereby.
        Upon the filing of the UCC-1 financing statements and the recording of the
        Collateral Assignments for security referred to in the Security Agreement
        in the
        United States Patent and Trademark Office and the United States Copyright
        Office, such security interests in and Liens on the Collateral granted thereby
        shall be perfected security interests, in each case to the extent a Lien
        thereon
        can be perfected by filing pursuant to the UCC or by the recording of such
        Collateral Assignments in the United States Patent and Trademark Office or
        the
        United States Copyright Office, and no further recordings or filings are
        or will
        be required in connection with the creation, perfection or enforcement of
        such
        security interests and Liens, other than (i) the filing of continuation
        statements or financing change statements in accordance with Applicable Law,
        (ii) the recording of the Collateral Assignments for security pursuant to
        the Security Agreement in the United States Patent and Trademark Office and
        the
        United States Copyright Office, as applicable, with respect to after-acquired
        United States patent and trademark applications and registrations and United
        States copyrights and additional filings and/or other actions as may be required
        to perfect the Collateral Agent’s lien in Registered Intellectual Property under
        the laws of a jurisdiction outside the United States, and (iii) additional
        filings if a relevant Credit Party changes its name, identity or organizational
        structure or the jurisdiction in which each relevant Credit Party is
        organized.
  (dd) Foreign
        Assets Control Regulations, Etc. Neither
        the execution and delivery of, nor the borrowing under any Loan Document,
        nor
        the use of proceeds from any Loan will violate (i) the Trading with the
        Enemy Act, as amended, or any of the foreign assets control regulations of
        the
        United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended)
        or
        any enabling legislation or executive order relating thereto, (ii) the
        Patriot Act, or (iii) Executive Order No. 13,224, 66 Fed.
        Reg. 49,079 (2001), issued by the President of the United States (Executive
        Order Blocking Property and Prohibiting Transactions with Persons Who Commit,
        Threaten to Commit or Support Terrorism). Without limiting the foregoing,
        none
        of the Credit Parties is or will become a “blocked person” as described in
        Section 1 of such Executive Order or engages or will engage in any dealings
        or transactions with, or is otherwise associated with, any such blocked
        person.
  67
 (ee) Equipment
        Leases .
        Each
        Credit Party has good and indefeasible title to, or a valid leasehold interest
        in, all of its material personal property, in each case, free and clear of
        Liens
        except for Permitted Encumbrances. The Credit Parties enjoy peaceful and
        undisturbed possession under all leases of Equipment and other personal property
        material to their business and to which they are parties or under which they
        are
        operating, and all of such material leases are valid and
        subsisting.
  ARTICLE
        VII
 REPORTING
        COVENANTS
  Each
        Credit Party covenants and agrees that, from and after the date hereof (except
        as otherwise provided herein, or unless the Required Lenders have given their
        prior written consent) until all amounts owing hereunder or under any Loan
        Document or in connection herewith or therewith have been paid in full,
        that:
  SECTION
        7.01 Financial
        Statements . Each
        Credit Party (a) shall keep, and cause each of its Subsidiaries to keep,
        proper books of record and account, in which true and correct entries shall
        be
        made of all material financial transactions and the assets and business of
        the
        Credit Parties, and (b) shall maintain a system of accounting established
        and administered in accordance with sound business practices to permit
        preparation of consolidated financial statements in conformity with GAAP,
        and
        each of the financial statements described below shall be prepared from such
        system and records. The Administrative Borrower shall deliver or cause to
        be
        delivered to the Administrative Agent:
  (a) Monthly
        Reports .
        As soon
        as available, but in any event within thirty (30) days after the end of
        each Fiscal Month (and with respect to the last Fiscal Month of each Fiscal
        Quarter of the Administrative Borrower (including the last Fiscal Month of
        the
        Administrative Borrower’s Fiscal Year), forty-five (45) days after the end
        of such Fiscal Month), (i) a consolidated balance sheet for the Credit
        Parties as at the end of such Fiscal Month (and showing a comparison to the
        same
        period from the previous Fiscal Year and the projections for such period),
        (ii) the related consolidated statements of income of the Credit Parties
        for such Fiscal Month, (iii) the related consolidated statements of cash
        flow of the Credit Parties for such Fiscal Month, and (iv) the related
        unaudited consolidated statements of income and cash flow, in each case,
        for
        such Fiscal Month and for the period commencing on the first day of such
        Fiscal
        Year and ending the last day of such Fiscal Month (and showing a comparison
        to
        the same periods from the previous Fiscal Year and the projections for such
        period), in a form reasonably satisfactory to the Administrative Agent and
        certified by an Authorized Officer of the Administrative Borrower as fairly
        presenting, in all material respects, the financial position of the Credit
        Parties as at the dates indicated and the results of their operations for
        the
        Fiscal Months indicated, such consolidated balance sheets and consolidated
        statements of income in accordance with GAAP, subject to normal year-end
        adjustments and the absence of footnotes.
  68
 (b) Quarterly
        Reports .
        As soon
        as available, but in any event within forty-five (45) days after the end of
        each Fiscal Quarter in each Fiscal Year (including the last Fiscal Quarter
        of
        each Fiscal Year) (i) the quarterly report of Administrative Borrower
        required to be filed with the SEC pursuant to Section 13 or 15(d) of
        the Securities Exchange Act, including the unaudited consolidated balance
        sheets
        of the Credit Parties as at the end of such period, the related unaudited
        consolidated statements of income and cash flow of the Credit Parties and
        the
        related unaudited consolidated statements of income for such Fiscal Quarter
        or
        if such quarterly reports are not filed with the SEC for any reason, the
        unaudited consolidated balance sheets of the Credit Parties as at the end
        of
        such period, the related unaudited consolidated statements of income and
        cash
        flow of the Credit Parties and the related unaudited consolidated statements
        of
        income for such Fiscal Quarter, (ii) a certificate of a Senior Officer of
        the Administrative Borrower stating that such unaudited financial information
        fairly presents, in all material respects, the financial position of the
        Credit
        Parties as at the dates indicated and the results of its operations and cash
        flow for the Fiscal Quarters indicated, such consolidated balance sheets
        and
        consolidated statements of income and cash flow in accordance with GAAP,
        subject
        to normal year-end adjustments and the absence of footnotes, (iii) a copy
        of the quarterly updated litigation report for such Fiscal Quarter; provided , however ,
        to the
        extent such quarterly report filed with the SEC contains a complete and correct
        disclosure regarding litigation, such quarterly report shall be deemed to
        satisfy this clause ,
        (iv) a
        detailed report of all Asset Dispositions permitted by SECTION
        9.04 ,
        (v) an
        update of Schedule 6.01(v) reflecting all changes since the last update, and (vi) an updated list of
        all Coal Supply Agreements in reasonable detail reflecting all changes since
        the
        last update.
  (c) Annual
        Reports .
        As soon
        as available, but in any event within ninety (90) days after the end of
        each Fiscal Year (i) the annual report of Administrative Borrower required
        to be filed with the SEC pursuant to Section 13 or 15(d) of the
        Securities Exchange Act, including the audited consolidated balance sheets
        of
        the Credit Parties as of the end of such Fiscal Year, the related audited
        consolidated statements of income, stockholders’ equity and cash flow of the
        Credit Parties and the related unaudited consolidated statements of income
        of
        the Credit Parties for such Fiscal Year or if such annual reports are not
        filed
        with the SEC for any reason, the audited consolidated balance sheets of the
        Credit Parties as of the end of such Fiscal Year, the related audited
        consolidated statements of income, stockholders’ equity and cash flow of the
        Credit Parties and the related unaudited consolidated statements of income
        of
        the Credit Parties for such Fiscal Year and (ii) a report on such financial
        statements of KPMG LLP or other independent public accountants of nationally
        recognized standing or other independent certified public accountants reasonably
        acceptable to the Administrative Agent, which report shall be unqualified
        in all
        material respects.
  (d) Officer’s
        Certificate; Etc. Together
        with each delivery of any financial statement pursuant to subsections
        (a) and (b) of this SECTION
        7.01 ,
        (i) an Officer’s Certificate substantially in the form of Exhibit O-1 attached
        hereto and made a part hereof, stating that a Senior Officer signatory thereto
        has reviewed the terms of the Loan Documents, and has made, or caused to
        be made
        under his or her supervision, a review in reasonable detail of the transactions
        and consolidated financial condition of the Credit Parties during the accounting
        period covered by such financial statements, that such review has not disclosed
        the existence during or at the end of such accounting period, and that such
        officer does not have knowledge of the existence as at the date of such
        Officer’s Certificate, of any condition or event which constitutes an Event of
        Default or a continuing Default, if any such condition or event existed or
        exists, specifying the nature and period of existence thereof and what action
        the Borrowers and their Subsidiaries have taken, are taking and propose to
        take
        with respect thereto (the “ Officer’s
        Certificate ”),
        and
        (ii) a certificate substantially in the form of Exhibit C-2 attached
        hereto and made a part hereof (the “ Compliance
        Certificate ”),
        signed by the Borrower’s Senior Officer or other Senior Officer, setting forth
        calculations (with such specificity as the Administrative Agent may reasonably
        request) for the period then ended which demonstrate compliance, when
        applicable, with the provisions of ARTICLE
        IX and ARTICLE
        X during
        such period.
  69
 (e) Budgets;
        Business Plans; Financial Projections .
        As soon
        as practicable and in any event not later than thirty (30) days prior to
        the
        beginning of each Fiscal Year, the Administrative Borrower shall deliver
        to
        Administrative Agent their financial forecast, prepared in accordance with
        the
        Borrowers’ normal accounting procedures applied on a consistent basis, on a
        monthly basis for the upcoming Fiscal Year and on an annual basis for the
        next
        succeeding Fiscal Year prior to the Maturity Date, including (i) a
        forecasted consolidated and consolidating balance sheet, and the related
        consolidated and consolidating statements of income and cash flows of the
        Credit
        Parties for and as of the end of such Fiscal Year, and (ii) the amount of
        forecasted Capital Expenditures for such Fiscal Year.
  (f) Shareholder
        Communications and Press Releases .
        To
        Administrative Agent, promptly upon their becoming available, copies of:
        (i) all
        Financial Statements, reports, notices and proxy statements made publicly
        available by any Credit Party to its security holders; (ii) all regular and
        periodic reports and all registration statements and prospectuses, if any,
        filed
        by any Credit Party with any securities exchange or with the SEC or any
        governmental or private regulatory authority; and (iii) all press releases
        and
        other statements made available by any Credit Party to the public concerning
        material changes or developments in the business of any such
        Person.
  (g) Collateral
        Reporting .
        Each
        Credit Party executing this Agreement hereby agrees that, from and after
        the
        Closing Date and until the Termination Date, it shall deliver to the Collateral
        Agent and the Lenders, as required, the various collateral reports (including
        Borrowing Base Certificates) at the times, to the Persons and in the manner
        set
        forth in Annex
        B .
  SECTION
        7.02 Other
        Financial Information .
        The
        Administrative Borrower shall deliver to each Agent any Credit Party’s such
        other information, with respect to (a) the Collateral, or (b) any
        Credit Party’s business, financial condition, results of operations, properties,
        projections, business or business prospects as such Agent may, from time
        to
        time, reasonably request. The Credit Parties hereby authorize each Agent
        and its
        representatives to communicate directly with the certified public accountants
        for the Borrowers so long as the Agent provides a Senior Officer of such
        Credit
        Party the opportunity to participate in such communication and authorizes
        the
        accountants to disclose to each Agent, each Lender and their respective
        representatives any and all financial statements and other financial
        information, including copies of any final management letter, that such
        accountants may have with respect to the Collateral or such Credit Party’s
        financial condition, results of operations, properties, projections, business,
        and business prospects. The Agents and such representatives shall treat any
        non-public information so obtained as confidential.
  70
 SECTION
        7.03 Defaults,
        Events of Default . Promptly
        upon any Senior Officer obtaining knowledge of any condition or event which
        constitutes a breach or violation of any of the covenants, representations
        or
        conditions of this Agreement, an Event of Default or a Default, each Credit
        Party shall deliver to the Administrative Agent an Officer’s Certificate
        specifying (a) the nature and period of existence of any such claimed Event
        of Default, Default, condition or event, (b) the notice given or action
        taken by such Person in connection therewith, and (c) what action such
        Credit Party has taken, is and proposes to take with respect
        thereto.
  SECTION
        7.04 Lawsuits . (a) Promptly
        upon any Credit Party obtaining knowledge of the institution of, or written
        threat of (i) any action, suit, proceeding or arbitration against or
        affecting such Credit Party or any asset of such Credit Party or not previously
        disclosed pursuant to SECTION
        6.01(f) ,
        which
        action, suit, proceeding or arbitration could reasonably be expected to have
        a
        Material Adverse Effect, (ii) any investigation or proceeding before or by
        any Governmental Authority, the effect of which could reasonably be expected
        to
        materially limit, prohibit or restrict the manner in which such Credit Party
        currently conducts its business, (iii) any Forfeiture Proceeding, or
        (iv) any material Condemnation or Condemnation proceeding, such Credit
        Party shall give written notice thereof to the Administrative Agent and provide
        such other information reasonably requested by the Administrative Agent as
        may
        be reasonably available to enable the Administrative Agent to evaluate such
        matters except, in each case, where the same is fully covered by insurance
        (other than applicable deductible), and (b) in addition to the requirements
        set forth in clause (a) of this SECTION
        7.04 ,
        such
        Credit Party upon request of the Administrative Agent, shall promptly give
        written notice of the status of any action, suit, proceeding, governmental
        investigation or arbitration covered by a report delivered pursuant to clause (a) above
        and provide such other information as may be reasonably requested by the
        Administrative Agent and reasonably available to such Credit Party to enable
        the
        Administrative Agent to evaluate such matters.
  SECTION
        7.05 Insurance . As
        soon
        as practicable and in any event within three (3) Business Days of any
        notice of nonrenewal or cancellation without replacement thereof of any material
        insurance coverage set forth on the most recent schedule delivered pursuant
        to SECTION
        6.01(t) ,
        as
        applicable, the Administrative Borrower shall deliver to the Administrative
        Agent a copy of any such notice.
  SECTION
        7.06 Environmental
        Notices .
        The
        Administrative Borrower shall, and shall cause the Credit Parties to, notify
        the
        Administrative Agent and the Collateral Agent, in writing, promptly, and
        in any
        event within five (5) Business Days after such Credit Party’s obtaining
        knowledge thereof, of any: (a) notice or claim to the effect that such
        Credit Party is or may be liable to any Person as a result of the Release
        of any
        Hazardous Material; (b) investigation by any Governmental Authority of any
        Credit Party evaluating whether any Remedial Action is needed to respond
        to the
        Release of any Hazardous Material; (c) notice that any Property of such
        Credit Party is subject to an Environmental Lien; (d) any material
        violation of Environmental Laws by such Credit Party or awareness by such
        Credit
        Party of a condition which would reasonably be expected to result in a material
        violation of any Environmental Law by such Credit Party; (e) commencement
        or written threat of any judicial or administrative proceeding alleging a
        violation of or liability under any Environmental Law involving such Credit
        Party; (f) any proposed acquisition of stock, assets, real estate or
        leasing of property, or any other action by such Credit Party that would
        reasonably be expected to subject such Credit Party to material Environmental
        Liabilities and Costs; or (g) document provided to a Governmental Authority
        concerning any Release of a Hazardous Material in excess of any reportable
        quantity from or onto property owned or operated by such Credit Party or
        any
        release or event requiring reporting pursuant to any Environmental Law or
        any
        material obligation to take any Remedial Action to abate any Release. For
        purposes of clauses (a) , (b) , (c) and (d) ,
        notice
        shall include any other written communications given to an agent or employee
        of
        the Credit Party with direct or indirect supervisory responsibility with
        respect
        to the activity, if any, which is the subject of such communication. With
        respect to clauses (a) through (g) above,
        such notice shall be required only if (i) the liability or potential
        liability, or with respect to clause (g) ,
        the
        cost or potential cost of compliance, which is the subject matter of the
        notice
        is reasonably likely to exceed one hundred thousand Dollars ($100,000), or
        if
        (ii) such liability or potential liability or cost of compliance when added
        to other ongoing or pending liabilities of such Credit Party of the kind
        covered
        by clauses (a) through
        (f) above is reasonably likely to exceed two hundred and fifty thousand Dollars
        ($250,000). Upon the written request of the Administrative Agent, the Credit
        Parties shall provide the Administrative Agent with copies of any non-privileged
        documents related to any matter for which notice has been given pursuant
        to this SECTION
        7.06 .
  71
 SECTION
        7.07 Labor
        Matters .
        The
        Administrative Borrower shall, and shall cause each Credit Party to, notify
        the
        Administrative Agent in writing, promptly, but in any event within three
        (3)
        Business Days after learning thereof, of (a) any material labor dispute to
        which any Credit Party could reasonably be likely to become a party, any
        actual
        or threatened strikes, lockouts or other disputes relating to such Credit
        Party’s plants and other facilities, and (b) any material liability
        incurred with respect to the closing of any plant or other facility of such
        Credit Party.
  SECTION
        7.08 Other
        Information .
        Promptly upon receiving a request therefor from the Administrative Agent,
        each
        Credit Party shall prepare and deliver to the Administrative Agent (a) such
        other information with respect to such Credit Party’s business, financial
        condition, results of operations, properties, projections, business or business
        prospects, (b) such other information with respect to the Collateral,
        including, without limitation, schedules identifying and describing the
        Collateral and any Dispositions thereof or (c) such other information with
        respect to such Credit Party, as from time to time may be reasonably requested
        by the Administrative Agent.
  ARTICLE
        VIII
 AFFIRMATIVE
        COVENANTS
  Each
        Credit Party covenants and agrees, from and after the date hereof (except
        as
        otherwise provided herein) until all amounts owing hereunder or under any
        Loan
        Document or in connection herewith or therewith have been paid in full,
        that:
  SECTION
        8.01 Compliance
        with Laws and Contractual Obligations .
        Each
        Credit Party shall comply with all Requirements of Law (including with respect
        to the licenses, approvals, certificates, permits, franchises, notices,
        registrations and other governmental authorizations necessary to the ownership
        of its respective properties or to the conduct of its respective business,
        antitrust laws or Environmental Laws and laws with respect to social security
        and pension funds obligations) except where the failure to do so, individually
        or in the aggregate, could not reasonably be expected to result in a Material
        Adverse Effect. Each Credit Party shall comply with all obligations under
        Material Contracts, including the Indenture. In addition the Credit Parties
        are
        in compliance with all other contractual obligations binding upon them, except
        to the extent that any such failure to be in compliance could not reasonably
        be
        expected individually or in the aggregate to result in a Material Adverse
        Effect. Each Credit Party shall have policies in place to observe the applicable
        requirements of the Patriot Act related requirements consistent with U.S.
        industry practice.
  72
 SECTION
        8.02 Payment
        of Taxes and Claims .
        Each
        Credit Party shall pay (a) all taxes, assessments and other governmental
        charges imposed upon it or on any of its properties or assets or in respect
        of
        any of its franchises, business, income or property, and (b) all claims
        (including claims for labor, services, materials and supplies) for sums material
        in the aggregate to such Credit Party which have become due and payable and
        which by law have or may become a Lien upon any of such Credit Party’s
        properties or assets, in each case prior to the time when any penalty or
        fine
        will be incurred by the Credit Party with respect thereto, except for such
        taxes, assessments, other governmental charges and claims that are being
        contested in a Permitted Protest to the extent that the failure to do so
        could not, individually or in the aggregate, reasonably be expected to result
        in
        a Material Adverse Effect.
  SECTION
        8.03 Conduct
        of Business and Preservation of Corporate Existence . Each
        Credit Party shall (a) continue to engage in business of the same general
        type as now conducted by the Credit Parties, taken as a whole, and
        (b) preserve and maintain its corporate existence, rights (charter and
        statutory), licenses, consents, permits, notices or approvals and franchises
        deemed material to its business; provided  that no
        Credit Party shall be required to preserve any right or franchise if
        (i) the Credit Party shall determine in good faith that the preservation
        thereof is no longer necessary, and (ii) that the loss thereof could not
        reasonably be expected to have a Material Adverse Effect.
  SECTION
        8.04 Inspection
        of Property; Books and Records; Discussions .
  (a) At
        any
        reasonable time during normal business hours with prior notice, or at any
        time
        without notice if a Default or Event of Default shall have occurred and be
        continuing, each Credit Party shall permit any authorized representative(s)
        designated by any Agent to visit and inspect any of its assets (including
        the
        conducting of real estate appraisals (unless such appraisals are being conducted
        by Term Loan Agent)), to examine, audit, check and make copies of their
        respective financial and accounting records, books, journals, orders, receipts
        and any correspondence with regulators and other data relating to their
        respective businesses or the transactions contemplated by the Loan Documents
        (including in connection with environmental compliance, hazard, liability
        or
        insurance programs), and to discuss their affairs, finances and accounts
        with
        their officers and independent certified public accountants. The visitations
        and/or inspections by or on behalf of any Agent shall be at the Credit Parties’
expense and all costs and expenses incurred by the Administrative Agent or
        the
        Collateral Agent in connection therewith shall constitute Lender Expenses
        hereunder; provided that so
        long as no Event of Default is continuing, the Credit Parties shall not be
        obligated to pay for more than such visitations and/or inspections in any
        twelve
        (12)-month period specified in SECTION
        8.04(b) and 8.04(c) below.
        Each Credit Party shall keep and maintain in all material respects proper,
        complete and accurate books of record and account, in which entries in
        conformity with GAAP shall be made of all dealings and financial transactions
        and the assets and business of such Credit Party in relation to their respective
        businesses and activities, including transactions and other dealings with
        respect to the Collateral. If an Event of Default has occurred and is continuing
        and the Loans have been accelerated, the Administrative Borrower, upon the
        Administrative Agent’s request, shall make copies of or turn over any such
        records to the Administrative Agent or its representatives.
  73
 (b) Upon
        three (3) Business Days’ prior written notice to the Credit Parties, each
        Credit Party shall permit any authorized representatives of the Collateral
        Agent
        to conduct a field examination, at the Borrower’s expense, of any of the
        properties of such Credit Party, including its and their financial and
        accounting records, and to make copies and take extracts therefrom, and to
        discuss its and their affairs, finances and business with its and their officers
        and certified public accountants, at such reasonable times during normal
        business hours and, subject to the proviso set forth below, as often as may
        be
        reasonably requested (a “ Field
        Examination ”); providedthat so long
        as no Event of Default is continuing, the Borrowers shall not be obligated
        to
        pay the costs of more than four (4) field exams in any twelve (12) -month
        period.
  (c) Each
        Credit Party shall permit any authorized representatives of the Collateral
        Agent
        to conduct an appraisal of the Inventory of such Credit Party at such Credit
        Party’s expense; providedthat so long
        as no Event of Default is continuing, the Borrowers shall not be obligated
        to
        pay the costs of more than two (2) such Inventory appraisals in any twelve
        (12)
        - month period.
  SECTION
        8.05 Maintenance
        of Properties .
        Each
        Credit Party shall, maintain, preserve and protect consistent with past practice
        all of their tangible properties and Intellectual Property and other intangible
        assets which are material to the conduct of their business in good working
        order
        and condition, ordinary wear and tear excepted, except where the failure
        to do
        so could not reasonably be expected to have a Material Adverse Effect, and
        comply with the provisions of all Material Contracts (including material
        Mining
        Leases) to which each of them is a party so as to prevent any material loss
        or
        forfeiture thereof or thereunder. Further, each Credit Party shall maintain
        all
        other contractual obligations binding upon it, except to the extent that
        any
        such failure to do so could not reasonably be expected, individually or in
        the
        aggregate, to result in a Material Adverse Effect. Each Credit Party shall
        (a)
        maintain such Credit Party’s rights in all Intellectual Property material to the
        conduct of its business, including all Registered Intellectual Property and
        all
        Trade Secrets owned or licensed by such Credit Party (b) take all commercially
        reasonable steps to preserve and protect such Intellectual Property, including
        maintaining the quality of any and all products or services used or provided
        in
        connection with any material Trademark, at least at the level of quality
        of the
        products and services as of the Closing Date, and (c) take all commercially
        reasonable steps to ensure that all licensed users of any such Intellectual
        Property use such substantially consistent standards of quality.
  SECTION
        8.06 Transactions
        with Related Parties .
        Each
        Credit Party shall conduct all transactions otherwise permitted under this
        Agreement with any of its Related Parties on terms that are commercially
        reasonable and no less favorable to such Credit Party than such Credit Party
        would obtain in a comparable arm’s-length transaction with a Person not a
        Related Party.
  74
 SECTION
        8.07 Further
        Assurances .
        Each
        Credit Party shall take such action and execute, acknowledge and deliver,
        at its
        sole cost and expense, such agreements, instruments or other documents as
        the
        Collateral Agent may reasonably require from time to time in order (a) to
        carry out more effectively the purposes of this Agreement and the other Loan
        Documents, (b) to obtain, maintain, continue, validate or perfect its
        first-priority Liens on any of the Collateral or any other property of the
        Credit Parties, (c) to establish and maintain the validity and
        effectiveness of any of the Loan Documents and the validity, perfection and
        priority of the Liens intended to be created thereby, and (d) to better
        assure, convey, grant, assign, transfer and confirm unto the Collateral Agent
        for the ratable benefit of the Lenders the rights now or hereafter intended
        to
        be granted to the Collateral Agent for the ratable benefit of the Lenders
        under
        this Agreement or any other Loan Document.
  SECTION
        8.08 Additional
        Security; Additional Guaranties; Further Assurances .
  (a) In
        the
        event that any Credit Party acquires a fee interest in any Real Estate Asset
        and
        such interest has not otherwise been made subject to a Lien in favor of the
        Collateral Agent, for the benefit of the Lenders, then such Credit Party,
        within
        ten (10) days after (or such later time as the Collateral Agent may agree
        in the
        exercise of its reasonable discretion) acquiring such Real Estate Asset,
        shall
        take all such actions and execute and deliver, or cause to be executed and
        delivered, all such mortgages, documents, instruments, agreements, opinions
        and
        certificates as the Collateral Agent shall reasonably request to create in
        favor
        of the Collateral Agent, for the benefit of the Lenders, a valid and, subject
        to
        any filing and/or recording referred to herein, perfected first-priority
        security interest in such Real Estate Asset. In addition to the foregoing,
        the
        Administrative Borrower shall, at the request of the Required Lenders, deliver,
        from time to time, to the Administrative Agent such appraisals as are required
        by law or regulation of Real Estate Assets with respect to which the Collateral
        Agent has been granted a Lien.
  (b) If
        any
        Credit Party enters into any Material Contract after the Closing Date, then
        such
        Credit Party shall notify the Agents thereof within fifteen (15) days
        thereafter, and such Credit Party shall promptly (and in any event, within
        sixty (60) days following the date of such Material Contract (including any
        Mining Lease that constitutes a Material Contract) or such later time as
        may
        reasonably be necessary, in the Collateral Agent’s reasonable discretion) use
        commercially reasonable efforts to execute and deliver to the Agents
        (i) all such Mortgages, documents, instruments, agreements, opinions and
        certificates that the Collateral Agent shall reasonably request to create
        in
        favor of the Collateral Agent, for the benefit of the Lenders, a valid and
        enforceable perfected first-priority Lien and security interest in such
        Leasehold Property (subject to Permitted Encumbrances), (ii) each of the
        documents, instruments and other materials related thereto as may be reasonably
        requested by the Agents, (iii) using such Credit Party’s best efforts, a
        landlord consent and estoppel if required under the applicable Lease, or
        landlord estoppel certificate if no consent is required under the Lease; provided  that any such
        landlord consent and/or estoppel shall be in form and substance reasonably
        acceptable to the Administrative Agent and shall address such matters as
        are
        reasonably required by the Lenders, which shall include, but not be limited
        to,
        a consent by the Landlord to the lien on such Lease in favor of the Collateral
        Agent to secure the Obligations, a waiver by the landlord of all statutory
        or
        other Liens that the Landlord has or could later have on any of the assets
        of
        the Lessee under such Lease, (iv) evidence that the Lease (or a memorandum
        thereof) has been recorded in all places necessary or desirable, in the
        reasonable judgment of the Administrative Agent, to give constructive notice
        of
        such Lease to third-party purchasers and encumbrances of the affected real
        property, and (v) if requested by Agent in respect of a Material Contract
        that
        is a Lease under which a Credit Party is the landlord, a subordination,
        non-disturbance and attornment agreement in a form reasonably acceptable
        to the
        Collateral Agent.
  75
 (c) Formation
        of Subsidiaries .
        The
        Credit Parties shall not form, acquire or have any Subsidiaries other than
        Credit Parties, and Subsidiaries that are acquired subject to the restrictions
        on Investments provided in SECTION
        9.07 or in
        accordance with this SECTION
        8.08(c) .
  (i) Each
        Credit Party shall (i) cause each Person that becomes a Subsidiary of such
        Credit Party after the Closing Date promptly (and in any event within ten
        (10)
        days after the creation or acquisition of such Subsidiary) to guarantee the
        Obligations and to grant to the Collateral Agent, for the benefit of the
        Lenders, a security interest in the real, personal and mixed property of
        such
        Subsidiary to secure the Obligations, and (ii) promptly (and in any event
        within ten (10) days after the creation or acquisition of any Equity Interests)
        pledge, or cause to be pledged, to the Collateral Agent, for the benefit
        of the
        Collateral Agent and Lenders, all of the Equity Interests owned by a Credit
        Party of each Person that becomes a direct Subsidiary of such Credit Party,
        and
        all of the Equity Interests owned by a Credit Party, all in accordance with
        this SECTION
        8.08 ,
        in the
        case of each of subclause (i) and (ii) above, to be accompanied by an opinion
        of
        counsel to such Credit Party, in form and substance satisfactory to the
        Administrative Agent. The documentation for such guaranty, security and pledge
        shall be in form and substance reasonably satisfactory to the Administrative
        Agent or the Collateral Agent and shall be substantially similar to the Loan
        Documents executed concurrently herewith with such modifications as are
        reasonably requested by the Collateral Agent.
  (ii) At
        the
        time that any Credit Party forms any Subsidiary or acquires any Subsidiary
        after
        the Closing Date, such Credit Party shall promptly (i) cause such
        Subsidiary to execute and deliver to the Administrative Agent and the Collateral
        Agent the Security Agreement, and such security documents, as well as
        appropriate financing statements, all in form and substance reasonably
        satisfactory to the Administrative Agent and the Collateral Agent (including
        being sufficient to grant the Collateral Agent, on behalf of the Lenders,
        a
        first-priority Lien in and to the assets of such newly formed or acquired
        Subsidiary), and (ii) provide to the Administrative Agent and the
        Collateral Agent all other documentation, including, at the Collateral Agent’s
        request, one or more opinions of counsel reasonably satisfactory to the
        Administrative Agent and Collateral Agent, which in the opinion of each of
        them
        is appropriate with respect to the execution and delivery of the applicable
        documentation referred to above (including the grant and perfection of any
        Lien
        contemplated thereby). Any document, agreement, or instrument executed or
        issued
        pursuant to this paragraph (c) shall be a Loan Document.
  (iii) The
        Credit Parties agree to cause each Subsidiary of a Credit Party which, after
        the
        Closing Date, is required to become a Guarantor in accordance with the
        requirements of this SECTION
        8.08 to, at
        their own expense, execute, acknowledge and deliver, or cause the execution,
        acknowledgment and delivery of, and thereafter register, file or record in
        any
        appropriate governmental office, any document or instrument reasonably deemed
        by
        the Collateral Agent to be necessary or desirable for the creation and
        perfection of the Liens on its assets intended to be created pursuant to
        the
        relevant Security Documents.
  76
 (d) The
        Liens
        required to be granted pursuant to this SECTION
        8.08 shall be
        granted pursuant to the respective Security Documents previously executed
        and
        delivered by the Credit Parties (or other security documentation substantially
        similar to such Security Documents or otherwise reasonably satisfactory in
        form
        and substance to the Collateral Agent) for the benefit of the Lenders and
        shall
        constitute valid and enforceable first-priority perfected security interests
        on
        all of the Collateral subject thereto, prior to the rights of all third Persons
        and subject to no other Liens except Permitted Encumbrances, and with such
        exceptions, conditions and qualifications, as shall be permitted by the
        respective Security Documents. Any Security Documents and other instruments
        related thereto or related to existing Security Documents shall be duly recorded
        or filed in such manner and in such places and at such times as are required
        by
        law to create, maintain, effect, perfect, preserve, maintain and protect
        the
        Liens, in favor of the Collateral Agent for the benefit of the Lenders, required
        to be granted pursuant to the Security Documents and all taxes, fees and
        other
        charges payable in connection therewith shall be paid in full by the Borrowers.
        At the time of the execution and delivery of any Security Documents, the
        Borrowers will, at the request of the Collateral Agent, cause to be delivered
        to
        the Collateral Agent such customary opinions of counsel and other related
        documents as may be reasonably requested by the Collateral Agent to assure
        that
        this SECTION
        8.08 has been
        complied with.
  (e) Each
        Credit Party agrees that each action required above by this SECTION
        8.08 shall be
        completed as promptly as reasonably practicable after such action is requested
        to be taken by the Administrative Agent or the Collateral Agent, provided that any
        action required above by this SECTION
        8.08 with
        respect to a newly formed, created or acquired Subsidiary shall be completed
        as
        promptly as practicable but in any event within ten (10) days following the
        formation, creation or acquisition of such Subsidiary.
  SECTION
        8.09 Powers;
        Conduct of Business .
        Each
        Credit Party shall qualify and remain qualified to do business in each
        jurisdiction in which the nature of its business requires it to be so qualified
        except for those jurisdictions where failure to so qualify does not have
        or
        could not reasonably be expected to have a Material Adverse Effect.
  SECTION
        8.10 Use
        of
        Proceeds . Proceeds
        of the Loans shall be used solely in accordance with SECTION
        2.02 hereof.
  SECTION
        8.11 Obtaining
        of Permits, Etc .  Each
        Credit Party shall obtain, maintain and preserve all Permits which are necessary
        or useful in the proper conduct of its business, except where the failure
        to
        maintain and preserve such permits, licenses, authorizations, approvals,
        entitlements and accreditations does not or could not reasonably be expected
        to
        have a Material Adverse Effect.
  77
 SECTION
        8.12 Environmental .
        Each
        Credit Party shall, (a) comply, and cause its Subsidiaries to comply, in
        all material respects with Environmental Laws and provide to the Collateral
        Agent documentation of such compliance which Collateral Agent reasonably
        requests, which documentation shall include a notice by the Administrative
        Borrower six (6) months after the Closing Date of the steps taken by the
        Credit
        Parties to address any outstanding matters described on Schedule
        6.01(p) ,
        (b) promptly provide the Collateral Agent a copy of any document provided
        to a Governmental Authority concerning any Release of a Hazardous Material
        from
        or onto property owned or operated by the Credit Parties and take any Remedial
        Actions required of the Credit Parties by Environmental Laws or otherwise
        appropriate to abate said Release or avoid Environmental Liabilities and
        Costs,
        and (c) perform any Remedial Action at property owned or operated by the
        Credit Parties (i) that is required of the Credit Parties pursuant to any
        Environmental Law or agreement with a Governmental Authority, or (ii) that
        was initiated prior to the Closing Date and is identified on Schedule 6.01(p) .
  SECTION
        8.13 Mining .
        The
        Credit Parties will, (a) take all commercially reasonable efforts to ensure
        that
        all of their respective tenants, subtenants, contractors, subcontractors,
        and
        invitees comply with all applicable Mining Laws, and obtain, comply and maintain
        any and all Mining Permits, applicable to any of them, and (b) conduct and
        complete all material investigations, studies, sampling and testing, and
        all
        remedial, removal and other actions in each case required under applicable
        Mining Laws and promptly comply in all respects with all lawful orders and
        directives of any Governmental Authority in respect of applicable Mining
        Laws.
  SECTION
        8.14 Maintenance
        of Insurance .
        Each
        Credit Party shall maintain (in the name of such Credit Party), insurance
        with
        financially sound and reputable insurance companies or associations (including,
        without limitation, commercial general liability, property and business
        interruption insurance) with respect to their Properties (including all Real
        Estate Assets leased or owned by them) and business, in such amounts and
        covering such risks as is required by any Governmental Authority having
        jurisdiction with respect thereto or as is carried generally in accordance
        with
        sound business practice by companies in similar businesses similarly situated.
        All such property and casualty policies shall name the Collateral Agent as
        loss
        payee, and all policies of liability insurance shall name the Collateral
        Agent
        an additional insured. All certificates of insurance are to be delivered
        to the
        Collateral Agent and the policies shall contain a loss payable and additional
        insured endorsements in favor of the Collateral Agent (substantially in the
        form
        reasonably requested by the Collateral Agent), and shall provide for not
        less
        than thirty (30) days’ prior written notice to the Collateral Agent and
        other named insureds of the exercise of any right of cancellation .
  SECTION
        8.15 Condemnation .
        Immediately upon learning of the institution of any Condemnation of any of
        its
        material owned or leased real property, any Credit Party shall notify each
        of
        the Agents of the pendency of such proceeding.
  SECTION
        8.16 Fiscal
        Year .
        Each
        Credit Party shall cause its Fiscal Year to end on December 31 of each year
        unless the Required Lenders consent to a change in such Fiscal Year (and
        appropriate related changes to this Agreement).
  78
 SECTION
        8.17 Payment
        of Contractual Obligations . Each
        Credit Party shall pay on a timely basis any and all premiums, cash reserves,
        claims or other payment obligations in respect of any material insurance
        policy
        or any insurance covering the Collateral, and pay on a timely basis any and
        all
        amounts due and payable, and perform all of its obligations, under all Material
        Contracts.
  SECTION
        8.18 Change
        in Collateral; Collateral Records .
        Each
        Credit Party shall advise the Collateral Agent promptly, in sufficient detail,
        of any change which could reasonably be expected to have a Material Adverse
        Effect relating to the value of the Collateral or the Lien granted thereon
        and
        execute and, upon the Collateral Agent’s reasonable request, deliver, and cause
        each of its Subsidiaries to execute and deliver, to the Collateral Agent
        from
        time to time, solely for the Collateral Agent’s convenience in maintaining a
        record of Collateral, such written statements and schedules, maintained by
        the
        Borrowers and their Subsidiaries in the ordinary course of business, as the
        Collateral Agent may reasonably require, designating, identifying or describing
        the Collateral.
  SECTION
        8.19 Cash
        Management .
        (a)  No Credit Party shall have any Deposit Account or Securities
        Account other than accounts maintained in accordance with SECTION
        9.15 hereof
        and the Administrative Borrower shall cause the Lenders to have a valid,
        perfected, first-priority security interest in such accounts except as otherwise
        specified in SECTION
        9.15 .
  (b) No
        Credit
        Party shall close any Deposit Account or Securities Account or any lockbox
        maintained by it as of the date hereof without the prior written consent
        of the
        Collateral Agent.
  (c) Each
        Credit Party shall take all reasonable steps necessary from time to time
        to
        deposit or cause to be deposited promptly all of their Collections (including
        those sent in cash or otherwise directly to a Credit Party) into an account
        subject to a Control Agreement.
  (d) The
        Collateral Agent shall have the right to give notice of cash dominion under
        any
        Control Agreement at any time after Availability is less than twenty million
        Dollars ($20,000,000) and, once given, such cash dominion shall continue
        until
        such time as the Aggregate Revolver Exposure is zero.
  SECTION
        8.20 Location
        of Equipment .
        Each
        Credit Party will keep its Equipment only at any of the locations identified
        on Schedule 6.01(aa)(2) or in
        transit from one such location to another; provided , however ,
        that
        the Administrative Borrower may amend Schedule 6.01(aa) so long
        as such amendment occurs by written notice to the Collateral Agent not less
        than
        thirty (30) days prior to the date on which the list of locations has
        changed and such Equipment is moved to such new location in the United
        States.
  SECTION
        8.21 Post-Closing
        Matters .
        Each
        Credit Party shall satisfy each condition and complete each item set forth
        on Schedule 8.21 attached
        hereto on or before the time specified on Schedule 8.21 with
        respect to such condition or item.
  SECTION
        8.22 Inventory .
        Each
        Credit Party shall maintain its Inventory only (a) at locations that are
        (i) owned or leased by the Credit Parties, or (ii) subject to a
        Collateral Access Agreement or will be within sixty (60) days from the Closing
        Date, or (b) in transit from one such location to another.
  79
 SECTION
        8.23 Pledged
        Security Interests .
        The
        Credit Parties shall deliver, within three (3) Business Days following the
        Closing Date, all of the certificated pledged Securities then owned by the
        Borrowers, together with (i) executed and undated transfer powers in the
        case of certificated pledged Securities, and (ii) all other items required
        to be delivered pursuant to the Security Agreement.
  ARTICLE
        IX
 NEGATIVE
        COVENANTS
  Each
        Credit Party covenants and agrees, from and after the date hereof (except
        as
        otherwise provided herein) until all amounts owing hereunder or under any
        other
        Loan Document or in connection herewith or therewith have been paid in full
        that:
  SECTION
        9.01 Liens . It
        shall
        not create, incur, assume or suffer to exist any Lien upon or with respect
        to any of its property or assets, whether now owned or hereafter acquired,
        or
        assign or otherwise transfer any account receivable or other right to receive
        income, other than Permitted Encumbrances.
  SECTION
        9.02 Indebtedness ;
        Voluntary Prepayments . It
        shall
        not create, incur, assume, guarantee or suffer to exist, or otherwise become
        or
        remain liable with respect to any Indebtedness, other than Permitted
        Indebtedness. The
        Credit Parties shall not (i) voluntarily prepay the principal of the Term
        Loan B Obligations or reduce the Term Letter of Credit Commitment (each as
        defined in the Term Credit Agreement dated as of the date hereof) unless
        on a
        pro forma basis after giving effect to such prepayment the Credit Parties
        shall
        have Availability in excess of twenty million Dollars ($20,000,000); or
        (ii) voluntarily prepay the principal of the Senior Notes (except pursuant
        to a Permitted Refinancing).
  SECTION
        9.03 Consolidation,
        Merger, Subsidiaries, Etc .  It
        shall
        not (a) liquidate or dissolve, consolidate with, or merge into or with, any
        other corporation, provided  that this clause (a) shall
        not prevent (i) a merger or consolidation involving only a Borrower and one
        or more of its Subsidiaries pursuant to which a Borrower is the surviving
        party,
        (ii) a merger or consolidation involving only one or more Wholly-Owned
        Domestic Subsidiaries of a Borrower pursuant to which the surviving Person
        is a
        Wholly-Owned Domestic Subsidiary of a Borrower that is a Credit Party,
        (iii) a merger or consolidation that has the effect of a disposition of
        assets permitted by SECTION
        9.04 or an
        Investment permitted by SECTION
        9.07 ,
        or
        (iv) purchase or otherwise acquire all or substantially all of the capital
        stock or assets of any Person (or of any division or business unit
        thereof).
 80
 SECTION
        9.04 Asset
        Dispositions, Etc .  It
        shall
        not sell, transfer, lease or otherwise dispose of, or grant options, warrants
        or
        other rights with respect to, any of its assets (including any capital stock
        or
        Indebtedness of any Person), (each an “ Asset
        Disposition ”)
        except:
  (a) sales,
        transfers, leases or other dispositions of (i) Inventory or rights to Inventory,
        (ii) surplus equipment and (iii) Permitted Investments, in each case in the
        ordinary course of business;
  (b) sales,
        transfers, leases or other dispositions of assets to a Credit
        Party;
  (c) the
        discount or sale, in each case without recourse and in the ordinary course
        of
        business, of receivables more than ninety (90) days overdue and arising in
        the
        ordinary course of business, but only in connection with the compromise or
        collection thereof consistent with customary industry practice (and not as
        part
        of any bulk sale or financing of receivables);
  (d) sales
        or
        other dispositions in the ordinary course of business of equipment and other
        tangible assets that have become obsolete, uneconomic, worn-out or no longer
        useful in the business of a Credit Party or its Subsidiaries;
  (e) Restricted
        Payments permitted by the terms of this Agreement;
  (f) dispositions
        of cash and Cash Equivalents in the ordinary course of business;
  (g) nonexclusive
        licenses of Intellectual Property of a Credit Party or its Subsidiaries entered
        into in the ordinary course of business;
  (h) in
        a
        transaction permitted under SECTION
        9.03 or SECTION
        9.07 ;
  (i) (A) the
        Bell County Disposition and (B) Dispositions (excluding the Bell County
        Dispositions) with an aggregate fair market value not exceeding twenty million
        Dollars ($20,000,000) in the aggregate; provided ,
        that
        with respect to sales, conveyances, transfers, leases, subleases, licenses,
        assignments and other dispositions of Equipment and Real Estate Assets, which
        are not replaced within one hundred eighty (180) days, if the Administrative
        Borrower notifies the Administrative Agent in writing within such 180 day
        period
        that it or the applicable Subsidiary intends to replace such Equipment or
        Real
        Estate Asset, then such Borrower or such applicable Subsidiary shall, so
        long as
        no Event of Default shall have occurred and be continuing, be permitted to
        do so
        as specified within three hundred and sixty five (365) days of the
        Disposition of such Equipment or Real Estate Asset; and
  (j) any
        Credit Party shall have the right (i) to terminate or allow to expire or
        to not
        renew any Lease in the ordinary and normal course of its business that is
        no
        longer needed for the ongoing operations of such Credit Party; or (ii) to
        enter
        into subleases, easements, licenses and other similar agreements relating
        to
        portions of its Property with third parties in the ordinary course of business
        of such Credit Party, to the extent that any such sublease, easement, license
        or
        other like agreement or does not otherwise relate to a material portion of
        the
        Property; and in all cases under clauses (i) and (ii), provided that such
        action
        or event could not reasonably be expected to result in a Material Adverse
        Effect.
  SECTION
        9.05 Limitation
        on Issuance of Equity Interests . It
        shall
        not issue or sell or enter into any agreement or arrangement for the issuance
        and sale of any shares of its capital stock or of any other Equity Interests,
        any Securities convertible into or exchangeable for its capital stock or
        other
        Equity Interests or any warrants, options or other rights for the purchase
        or
        acquisition of any of its capital stock or Equity Interests, other than (a)
        as
        set forth on Schedule
        6.01(e) ,
        (b)  the issuance of capital stock to a Borrower or Wholly-Owned
        Subsidiaries of such Borrower, (c) the issuance of capital stock of directors’
qualifying shares; or
        (d)
        issuances to employees pursuant to existing employee stock option plan as
        set
        forth on Schedule 6.01(e) .
  81
 SECTION
        9.06 Limitations
        on Dividends and Distributions and Other Payment Restrictions Affecting
        Subsidiaries . It
        shall
        not create or otherwise cause, incur, assume, suffer or permit to exist or
        become effective any consensual encumbrance or restriction of any kind on
        its
        ability to, (a) pay dividends or to make any other distribution on any
        shares of its Equity Interests, (b) subordinate or to pay, prepay, redeem
        or repurchase any Indebtedness owed to any Credit Party, (c) make loans or
        advances to any Credit Party, or (d) transfer any of its property or assets
        to
        any Credit Party; provided , however ,
        that
        nothing in clauses
        (a) through (d) of this SECTION
        9.06 shall
        prohibit or restrict: (i) this Agreement and the other Loan Documents;
        (ii) any Applicable Law, rule or regulation (including applicable currency
        control laws and applicable state or provincial corporate statutes restricting
        the payment of dividends or any other distributions in certain circumstances);
        (iii) any restriction set forth in any document or agreement governing or
        securing any Existing Debt; (iv) in the case of clause
        (d) any
        restrictions on the subletting, assignment or transfer of any property or
        asset
        included in a lease, license, sale conveyance or similar agreement with respect
        to such property or asset; (v) in the case of clause
        (d) any
        holder of a Permitted Encumbrance from restricting on customary terms the
        transfer of any property or assets subject to such Permitted Encumbrance;
        (vi)
        customary provisions restricting assignment of any licensing agreement or
        other
        contract entered into by the Credit Parties in the ordinary course of business;
        (vii) restrictions on the transfer of any asset pending the close of the
        sale of
        such asset; or (viii) customary provisions requiring payment on a pro rata
        basis
        of dividends or other distributions by any non-Wholly-Owned Subsidiary that
        is
        not a Credit Party set forth in the organizational documents for such Subsidiary
        so long as such provisions were not entered into in connection with any other
        agreement or arrangement not otherwise permitted under this SECTION
        9.06 .
  SECTION
        9.07 Investments .
        It
        shall not directly or indirectly, hold, own or invest in or commit or agree
        to
        hold or invest in, or purchase or otherwise acquire or commit or agree to
        purchase or otherwise acquire any Investment, except for Permitted Investments
        and Permitted Acquisitions.
  SECTION
        9.08 Sale
        and Leaseback .
        It
        shall not directly or indirectly, become or remain liable as lessee or as
        a
        guarantor or other surety with respect to any lease, whether an Operating
        Lease
        or a Capitalized Lease, of any property (whether real, personal or mixed),
        whether now owned or hereafter acquired, (i) that a Credit Party has sold
        or transferred or is to sell or transfer to any other Person, or (ii) that
        a Credit Party intends to use for substantially the same purpose as any other
        property that has been or is to be sold or transferred by such Credit Party
        or
        any other Credit Party to any Person in connection with such lease (a
“ Sale
        and Leaseback ”)
        in
        excess of $10,000,000 individually and in the aggregate for all such Sale
        and
        Leaseback transactions during the term of this Agreement.
  82
 SECTION
        9.09 Negative
        Pledges .
        It
        shall not enter into any agreement prohibiting the creation or assumption
        of any
        Lien upon any of its properties or assets, whether now owned or hereafter
        acquired, except  (a) pursuant to this Agreement and the Security
        Documents, (b) pursuant to any document or instrument governing Existing
        Debt
        (including the Indenture and Term Credit Agreement) or governing Capitalized
        Leases or purchase money debt incurred pursuant to SECTION
        9.02 or any
        such restriction contained therein relates only to the asset or assets acquired
        in connection therewith or in connection with any Lien permitted by SECTION
        9.01 or any
        Disposition permitted by SECTION
        9.04, (c)
        prohibitions or conditions under Applicable Law, rule or regulation,
        (d) any agreement or instrument to which any Person is a party existing on
        the date such Person first becomes a Subsidiary of a Credit Party or the
        date
        such agreement or instrument is otherwise assumed by a Credit Party (so long
        as
        such agreement or instrument was not entered into solely in contemplation
        of
        such Person becoming a Subsidiary of a Credit Party or such assumption and
        such
        prohibitions or conditions do not affect any other Subsidiary of the Credit
        Party (other than Subsidiaries of such Person having primary obligation for
        repayment of such Indebtedness)), (e) customary provisions restricting
        subletting or assignment of any lease governing any leasehold interest of
        a
        Credit Party, and (f)  customary provisions restricting assignment of any
        licensing agreement or other contract entered into by a Credit Party in the
        ordinary course of business; or restrictions on the transfer of any asset
        pending the close of the sale of such asset.
  SECTION
        9.10 Change
        in Nature of Business .
        Except
        as expressly permitted hereunder, it shall not make any material change in
        the
        nature of its business as such business is carried on as of the Closing Date
        or
        any business substantially related or incidental thereto. It shall not modify
        or
        change its fiscal year or materially modify or change its method of accounting
        (other than as may be required to conform to GAAP or, with respect to
        Subsidiaries, to conform to the Administrative Borrower’s Fiscal Year) or enter
        into, modify, or terminate any agreement currently existing or at any time
        hereafter entered into with any third-party accounting firm or service bureau
        for the preparation or storage of the Credit Parties’ accounting records in a
        manner that would result in said accounting firm or service bureau declining
        to
        provide the Agents with information regarding the Credit Parties’ financial
        condition.
  SECTION
        9.11 Change
        Name .
        It
        shall not change a Credit Party’s name, organizational identification number,
        state of organization, or organizational identity; provided , however ,
        that a
        Credit Party or a Subsidiary of a Credit Party may change its name or state
        of
        organization upon at least thirty (30) days’ prior written notice by the
        Administrative Borrower to the Administrative Agent and the Collateral Agent
        of
        such change and so long as, at the time of such written notification, such
        Credit Party or such Subsidiary provides any financing statements, fixture
        filings or other documents necessary to perfect and continue perfected
        Liens.
  SECTION
        9.12 Modifications
        of Indebtedness, Organizational Documents and Certain Other
        Agreements .
        It
        shall not amend, modify or otherwise change, (a) its certificate of
        incorporation or bylaws (or other similar organizational documents), including
        by the filing or modification of any certificate of designation, or any
        agreement or arrangement entered into by it, with respect to any of its capital
        stock (including any shareholders’ agreement) except any such amendments,
        modifications or changes pursuant to this clause that either individually
        or in
        the aggregate would not be materially adverse to the interests of the Lenders,
        (b) its accounting policies or reporting practices, (c) the Indenture,
        or (d) the Term Credit Agreement in a manner prohibited by the
        Intercreditor Agreement.
  83
 SECTION
        9.13 Federal
        Reserve Regulations .
        It
        shall not use any Loan or the proceeds of any Loan for any purpose that would
        cause such Loan to be a margin loan under the provisions of Regulation T, U
        or X.
  SECTION
        9.14 Investment
        Company Act of 1940 .
        It
        shall not engage in any business, enter into any transaction or take any
        other
        action that would cause it or any of its Subsidiaries to become subject to
        the
        registration requirements of the Investment Company Act of 1940, as amended,
        by
        virtue of being an “investment company” or a company “controlled” by an
“investment company” not entitled to an exemption within the meaning of such
        Act.
  SECTION
        9.15 Securities
        Accounts ;
        Deposit Accounts . Subject
        to the Security Agreement and except as permitted by SECTION
        5.01(v) ,
        it
        shall not establish or maintain any Securities Account, Deposit Account or
        similar account unless the Collateral Agent shall have received a Control
        Agreement in respect of such Securities Account, Deposit Account or similar
        account; provided  that ,
        this
        requirement shall not apply to any Deposit Account that is a disbursement
        account and either (A) does not have average daily balances in excess of
        $100,000 for each such account or (B) is an account for payment of workers
        compensation and employment claims, so long as the aggregate amount of such
        excluded Deposit Accounts does not exceed $1,000,000 in the aggregate for
        all
        such accounts. Each Credit Party shall comply in all material respects with
        the
        provisions of each Control Agreement to which it is a party.
  SECTION
        9.16 Impairment
        of Security Interests .
        Except
        as otherwise permitted pursuant to any of the Loan Documents, it shall not
        directly or indirectly, take any action or do anything that would have the
        effect of terminating, limiting in or impairing the perfection or priority
        of
        any Lien securing the Obligations except as expressly permitted under any
        Loan
        Document.
  SECTION
        9.17 Restricted
        Payments .
        It
        shall not make any Restricted Payment, except (a) intercompany loans and
        advances between Credit Parties to the extent permitted by SECTION
        9.07 ,
        (b) dividends and distributions by a Credit Party to the Credit Party that
        holds of the Stock of such Credit Party, (c) employee loans permitted under SECTION
        9.02 ,
        and
        (d) payments of principal and interest of intercompany notes issued in
        accordance with SECTION
        9.02 .
  ARTICLE
        X
 FINANCIAL
        COVENANTS
  Each
        Credit Party covenants and agrees, from and after the date hereof (except
        as
        otherwise provided herein, or unless the Required Lenders have given their
        prior
        written consent) until all amounts owing hereunder or under any Security
        Document or in connection herewith or therewith have been paid in full,
        that:
  SECTION
        10.01 Minimum
        Consolidated EBITDA .
        The
        Credit Parties shall not permit Consolidated EBITDA
  84
 (a) for
        the
        six (6) month period ending as of June 30, 2007 to be less than $22.2
        million,
  (b) for
        the
        nine (9) month period ending as of September 30, 2007 to be less than $34.5
        million, and
  (c) for
        the
        twelve (12)-month period ending on any date set forth in the table below
        to be
        less than the amount set forth opposite such date:
  **Measurement
                    Period Ending**
                
                **Consolidated
                    EBITDA**December 31,
                    2007
                
                $43.9
                    millionMarch
                    31, 2008
                
                $50.0
                    millionJune
                    30, 2008
                
                $56.0
                    millionSeptember
                    30, 2008
                
                $62.4
                    millionDecember 31,
                    2008
                
                $68.7
                    millionMarch
                    31, 2009
                
                $70.2
                    millionJune
                    30, 2009
                
                $71.7
                    millionSeptember
                    30, 2009
                
                $73.2
                    millionDecember 31,
                    2009
                
                $74.5
                    millionMarch
                    31, 2010
                
                $74.5
                    millionJune
                    30, 2010
                
                $73.7
                    millionSeptember
                    30, 2010
                
                $72.2
                    millionDecember 31,
                    2010
                
                $74.5
                    million
  SECTION
        10.02 Leverage
        Ratio .
        The
        Credit Parties shall not permit the Leverage Ratio for the Credit Parties
        as of
        any date set forth in the table below to be greater than the amount set forth
        opposite such date:
  **Measurement
                    Period Ending**
                
                **Leverage
                    Ratio**June
                    30, 2007
                
                2.3xSeptember
                    30, 2007
                
                2.2xDecember 31,
                    2007
                
                2.3xMarch
                    31, 2008
                
                2.1xJune
                    30, 2008
                
                1.9xSeptember
                    30, 2008
                
                1.8xDecember 31,
                    2008
                
                1.7xMarch
                    31, 2009
                
                1.6xJune
                    30, 2009
                
                1.6xSeptember
                    30, 2009
                
                1.6xDecember 31,
                    2009
                
                1.5xMarch
                    31, 2010
                
                1.5xJune
                    30, 2010
                
                1.5xSeptember
                    30, 2010
                
                1.6xDecember 31,
                    2010
                
                1.5x
 
 85
 SECTION
        10.03 Capital
        Expenditures .
        The
        Credit Parties will not make or agree to make any Capital Expenditure that
        would
        cause the aggregate amount of all such Capital Expenditures made by the Credit
        Parties in the aggregate to exceed (a) $56.1 million in the Fiscal Year
        ending on or before December 31, 2007 and (b) $70.4 million in the
        Fiscal Year ending on or before December 31, 2008 and (c) $66.0
        million in any Fiscal Year thereafter; provided , however ,
        to the
        extent that actual Capital Expenditures for any Fiscal Year are less than
        the
        maximum amount set forth above for such Fiscal Year, such unused amount may
        be
        carried forward and used only in the next Fiscal Year (where it shall be
        deemed
        to be spent last).
  ARTICLE
        XI
 EVENTS
        OF
        DEFAULT, RIGHTS AND REMEDIES
  SECTION
        11.01 Events
        of Default . Each
        of
        the following occurrences shall constitute an event of default (an “ Event
        of Default ”)
        under
        this Agreement.
  (a) Failure
        to Make Payments When Due .
        The
        Borrowers shall fail to pay (i) any principal or interest when due, or
        (ii) any fees, Lender Expenses or any other monetary Obligation, and such
        failure shall continue for a period of three (3) Business Days after such
        amount
        was due (in each case, whether by scheduled maturity, required prepayment,
        acceleration, demand or otherwise).
  (b) Breach
        of Certain Covenants .
        Any
        Credit Party shall fail to perform or comply with any covenant or agreement
        contained in SECTION
        7.03 , SECTION
        8.03 , SECTION
        8.04 , SECTION
        8.08(c) , SECTION
        8.10 , SECTION
        8.11 , ARTICLE
        IX ,
        or ARTICLE
        X under
        this Agreement.
  (c) Breach
        of Representation or Warranty .
        Any
        representation, warranty or statement made or deemed made by or on behalf
        of any
        Credit Party or by any officer of the foregoing under any Loan Document or
        in
        any report, certificate, or other document delivered to any Agent or any
        Lender
        pursuant to any Loan Document prove to be incorrect or misleading in any
        material respect when made or deemed made.
  (d) Five
        (5) Day Cure Period .
        Any
        Credit Party shall fail to perform or comply with any covenant or agreement
        contained in ARTICLE
        VII ,
        except
        for SECTION
        7.03 and such
        default shall continue for five (5) Business Days or more.
  (e) Other
        Defaults (Thirty (30) - Day Cure) .
        Any
        Credit Party shall fail to perform or comply with any other covenant or
        agreement and such failure continues for a period of thirty (30) days after
        learning of such failure or receiving written notice thereof from any Agent, provided  that if such
        cure is not completed within such thirty (30)-day period, so long as such
        Credit
        Party has a commitment to cure and diligently pursues to complete such cure,
        such period shall be extended an additional thirty (30) days
        thereafter.
  86
 (f) Default
        as to Other Indebtedness .
        Any
        Credit Party or any Subsidiary of a Credit Party shall fail to make any payment
        when due (whether by scheduled maturity, required prepayment, acceleration,
        demand or otherwise) with respect to any Indebtedness if the aggregate amount
        of
        such Indebtedness is in excess of $5,000,000 in the aggregate and such failure
        shall continue after the applicable grace period, if any, specified in the
        agreement or instrument relating to such Indebtedness; or any other breach,
        default or event of default shall occur, or any other condition shall exist
        under any instrument, agreement or indenture pertaining to any such
        Indebtedness, if the effect thereof (with or without the giving of notice
        or
        lapse of time or both) is to permit or require an acceleration, mandatory
        redemption or other required repurchase of such Indebtedness or, as to such
        Indebtedness, permit the holder or holders of such Indebtedness to accelerate
        the maturity of any such Indebtedness or require a redemption or other
        repurchase of such Indebtedness; or any Indebtedness if the aggregate amount
        of
        such Indebtedness is in excess of $5,000,000 shall be declared due and payable
        (by acceleration or otherwise) by a Person (other than a Credit Party or
        any
        Subsidiary of a Credit Party) as a result of a breach, Default or Event of
        Default by a Credit Party or any Subsidiary of a Credit Party, or required
        to be
        prepaid, redeemed or otherwise repurchased by any Credit Party or any Subsidiary
        of a Credit Party (other than by a regularly scheduled required prepayment)
        prior to the stated maturity thereof; or the holder or holders of any Lien,
        securing obligations of $5,000,000 or more, shall commence foreclosure of
        such
        Lien upon property of any Credit Party or any Subsidiary of a Credit
        Party.
  (g) Voluntary
        Bankruptcy Proceeding .
        Any
        Credit Party (i) shall institute any proceeding or voluntary case seeking
        to
        adjudicate it as bankrupt or insolvent, or seeking dissolution, liquidation,
        winding up, reorganization, arrangement, adjustment, protection, relief or
        composition of it or its debts under any law relating to bankruptcy, insolvency,
        reorganization or relief of debtors, or seeking the entry of an order for
        relief
        or the appointment of a receiver, trustee, receiver and manager, interim
        receiver, sequestrator, administrator, monitor, custodian or other similar
        official for any such Credit Party or any Subsidiaries or for any substantial
        part of its property, (ii) shall consent to the entry of an order for
        relief in an involuntary bankruptcy case or to the conversion of an involuntary
        case to a voluntary case under bankruptcy, insolvency or reorganization law,
        (iii) shall be generally not paying its debts as such debts become due or
        shall admit in writing its inability to pay its debts generally, (iv) shall
        make a general assignment for the benefit of creditors, or (v) shall take
        any action to authorize or effect any of the actions set forth above in this SECTION
        11.01(g) .
  (h) Involuntary
        Bankruptcy Proceeding .
  (i) An
        involuntary case shall be commenced against any Credit Party or any Subsidiary
        of a Credit Party and the petition shall not be dismissed, stayed, bonded
        or
        discharged within sixty (60) days; or a court having jurisdiction in the
        premises shall enter a decree or order for relief in respect of such Credit
        Party or Subsidiary of a Credit Party in an involuntary case, under any
        applicable bankruptcy, insolvency or other similar law now or hereinafter
        in
        effect; or any other similar relief shall be granted under any applicable
        federal, state, provincial, local or foreign law; or the board of directors
        of
        such Credit Party or Subsidiary of a Credit Party (or any committee thereof)
        adopts any resolution or otherwise authorizes any action to approve any of
        the
        foregoing.
  87
 (ii) A
        decree
        or order of a court having jurisdiction in the premises for the appointment
        of a
        receiver, liquidator, sequestrator, trustee, receiver and manager,
        administrator, monitor, custodian or other officer having similar powers
        over
        any Credit Party or any Subsidiary of a Credit Party or over all or a
        substantial part of their respective assets shall be entered; or an interim
        receiver, trustee or other custodian of any Credit Party or any Subsidiary
        of a
        Credit Party or of all or a substantial part of their respective assets shall
        be
        appointed or a warrant of attachment, execution or similar process against
        any
        substantial part of their respective assets shall be issued and any such
        event
        shall not be stayed, dismissed, bonded or discharged; or the board of directors
        of any Credit Party or any Subsidiary of a Credit Party (or any committee
        thereof) adopts any resolution or otherwise authorizes any action to approve
        any
        of the foregoing.
  (i) Invalidity
        of Documents .
        A court
        of competent jurisdiction shall declare that any material provision of any
        Loan
        Document shall at any time for any reason (other than pursuant to the express
        terms thereof) cease to be valid and binding on or enforceable against a
        Credit
        Party intended to be a party thereto; or the validity or enforceability thereof
        shall be contested by any Credit Party that is a party thereto; or a proceeding
        shall be commenced by a Credit Party or any Governmental Authority having
        jurisdiction over any of them, seeking to establish the invalidity or
        unenforceability thereof; or a Credit Party shall deny in writing that it
        has
        any liability or obligation purported to be created under any Loan
        Document.
  (j) Loan
        Documents; Impairment .
        At any
        time, for any reason, (i) any Loan Document shall for any reason (other
        than pursuant to the express terms hereof or thereof) fail or cease to create
        a
        valid and perfected Lien on any Collateral or the Liens intended to be created
        or perfected thereby are, or any Credit Party seeks to render such Liens,
        invalid or unperfected with respect to any Collateral except as otherwise
        contemplated hereby or thereby, or (ii) Liens with respect to any
        Collateral in favor of the Collateral Agent contemplated by the Loan Documents
        shall be invalidated or otherwise cease to be in full force and effect, or
        such
        Liens shall be subordinated or shall not have the priority contemplated hereby
        or by the other Loan Documents (subject to Permitted Encumbrances and to
        the
        exceptions set forth in the applicable Security Documents).
  (k) Judgments .
        One or
        more judgments or judicial or administrative orders for the payment of money
        exceeding five million Dollars ($5,000,000) in the aggregate shall be rendered
        against a Credit Party or any Subsidiary of a Credit Party and remain
        unsatisfied, undischarged, unvacated or unbonded; provided , however ,
        that
        any such judgment or order shall not give rise to an Event of Default under
        this SECTION
        11.01(k) if and
        to the extent that (i) the amount of such judgment or order is covered by a
        valid and binding policy of insurance between the defendant and the insurer
        covering full payment thereof, and (ii) such insurer has been notified, and
        has not disputed the claim made for payment, of the amount of such judgment
        or
        order.
  (l) Change
        of Control .
        A
        Change of Control shall have occurred .
  (m) ERISA .
        With
        respect to any Plan or Benefit Plan, as applicable, (i) a prohibited
        transaction within the meaning of Section 4975 of the Code or
        Section 406 of ERISA occurs which could reasonably be expected to result in
        material liability to any Credit Party, (ii) any accumulated funding
        deficiency (within the meaning of Section 412 of the Code and
        Section 302 of ERISA), whether or not waived, shall exist with respect to
        any Benefit Plan, or (iii) the occurrence of any ERISA Event; provided , however ,
        that
        the events listed in clauses
        (i) through
        (iii) shall constitute Events of Default only if the liability or deficiency
        of
        any Credit Party or ERISA Affiliate, would reasonably be expected to exceed
        two
        million five hundred thousand Dollars ($2,500,000) in any Fiscal Year and
        five
        million Dollars ($5,000,000) in the aggregate for all such events.
  88
 (n) Failure
        of Guaranty .
        Any
        Guaranty under the ARTICLE
        XII for any
        reason shall cease to be in full force and effect (other than in accordance
        with
        its terms), or any Guarantor shall deny in writing that it has any further
        liability under its Guaranty (other than as a result of the discharge of
        such
        Guarantor in accordance with the terms of the Loan Documents).
  (o) Lack
        of Security Interest .
        Any
        Lien created under any Loan Document shall cease to be, or shall be asserted
        by
        any Credit Party not to be, a valid, perfected and, with respect to the Credit
        Parties, first priority (except as otherwise expressly provided in this
        Agreement or the Intercreditor Agreement) Lien on any material Collateral
        covered thereby, except to the extent that any such loss of perfection or
        priority results from any action by Collateral Agent.
  SECTION
        11.02 Remedies . If
        any
        Event of Default specified in SECTION
        11.01 shall
        have occurred and be continuing, the Administrative Agent may, and upon the
        written request of Required Lenders shall, by written notice to the
        Administrative Borrower, take any or all of the following actions, without
        prejudice to the rights of any Agent or any Lender to enforce its claims
        against
        any Credit Party: (i) terminate or reduce the Commitments, whereupon the
        Commitments shall immediately be terminated or reduced, (ii) declare all or
        a portion of the Loans then outstanding to be due and payable, whereupon
        all or
        such portion of the aggregate principal of such Loans, all accrued and unpaid
        interest thereon, all fees and all other amounts payable under this Agreement
        and all other Obligations shall become immediately due and payable, without
        presentment, demand, protest or further notice of any kind, all of which
        are
        hereby expressly waived by the Borrower, and (iii) exercise any and all of
        its other rights and remedies hereunder, under the other Loan Documents,
        under
        Applicable Law and otherwise; provided , however ,
        that
        upon the occurrence of any Event of Default described in SECTION 11.01(e) or SECTION
        11.01(f) ,
        the
        Commitments and shall automatically terminate and the Loans then outstanding,
        together with all accrued and unpaid interest thereon, all fees, all other
        amounts due under this Agreement or any other Loan Document and all other
        Obligations shall become immediately due and payable automatically, without
        presentment, demand, protest or notice of any kind, all of which are expressly
        waived by the Credit Parties, and provided  further that the
        Collateral Agent shall pay and apply the proceeds of any sale or other
        disposition of the Collateral, or any part thereof, resulting from the exercise
        of the remedies as provided for in this SECTION
        11.02 in
        accordance with SECTION
        2.09 .
  SECTION
        11.03 Waivers
        by the Credit Parties .
        Except
        as otherwise provided for in this Agreement and Applicable Law, the Credit
        Parties waive (i) presentment, demand, protest, notice of presentment or
        dishonor, notice of intent to accelerate and notice of acceleration,
        (ii) all rights to notice and a hearing prior to the Lenders taking
        possession or control of, or to the Lenders’ replevin, attachment or levy upon,
        any collateral securing the Obligations or any bond or security which might
        be
        required by any court prior to allowing such Lenders to exercise any of their
        remedies, (iii) the benefit of all valuation, appraisal and exemption laws,
        and (iv) all rights of set-off against any Lender as it applies to the
        payment of the Obligations. The Credit Parties acknowledge that they have
        been
        advised by counsel of their choice with respect to this Agreement, the other
        Loan Documents and the transactions evidenced by this Agreement and the other
        Loan Documents.
  89
 ARTICLE
        XII
 GUARANTY
        OF OBLIGATIONS OF BORROWER
  SECTION
        12.01 Guaranty . In
        order
        to induce the Agents and the Lenders to enter into this Agreement and to
        make
        available the Loans hereunder, and in recognition of the direct benefits
        to be
        received by each Guarantor from the proceeds of the Loans, each Guarantor
        hereby
        agrees with the Administrative Agent and the Collateral Agent, for the benefit
        of the Lenders, as follows: each Guarantor hereby jointly, severally,
        unconditionally and irrevocably guarantees, as primary obligor and not merely
        as
        surety, the full and prompt payment when due, whether upon maturity,
        acceleration or otherwise, and the performance, of any and all of the
        Obligations of all other Credit Parties (such Obligations, collectively,
        the
“ Guaranteed
        Obligations ”).
        If
        any or all of the Obligations becomes due and payable hereunder, each Guarantor
        irrevocably and unconditionally promises to pay such Indebtedness to the
        Collateral Agent, for the benefit of the Lenders.
  SECTION
        12.02 Nature
        of Liability .
        The
        Guarantors agree that this Guaranty is a guaranty of payment and performance
        and
        not of collection, and that their obligations under this Guaranty shall be
        primary, absolute and unconditional, irrespective of, and the liability of
        each
        Guarantor shall not be affected by, nor shall this Guaranty be discharged
        or
        reduced by reason of:
  (a) the
        genuineness, validity, regularity, enforceability or any future amendment
        of, or
        change in this Guaranty, any other Loan Document or any other agreement,
        document or instrument to which any Credit Party and/or Guarantors are or
        may
        become a party;
  (b) the
        absence of any action to enforce this Guaranty or any other Loan Document
        or the
        waiver or consent by the Administrative Agent, the Collateral Agent and/or
        Lenders with respect to any of the provisions thereof;
  (c) any
        other
        continuing or other guaranty, undertaking or maximum liability of a Guarantor
        or
        of any other party as to the Obligations, or any payment on or in reduction
        of
        any such other guaranty or undertaking;
  (d) the
        incapacity or any change in the name, style or constitution of any Credit
        Party
        or any other person liable;
  (e) any
        dissolution, termination, increase, decrease or change in personnel by the
        Borrower;
  90


(f) the
        Collateral Agent granting any time, indulgence or concession to, or compounding
        with, discharging, releasing or varying the liability of, any Credit Party
        or
        any other person liable or renewing, determining, varying or increasing any
        accommodation, facility or transaction or otherwise dealing with the same
        in any
        manner whatsoever or concurring in, accepting or varying any compromise,
        arrangement or settlement or omitting to claim or enforce payment from any
        Credit Party or any other person liable;
  (g) the
        existence, value or condition of, or failure to perfect its Lien against,
        any
        Collateral for the Guaranteed Obligations or any action, or the absence of
        any
        action, by the Administrative Agent, or the Collateral Agent in respect thereof
        (including, without limitation, the release of any such
        Collateral);
  (h) the
        insolvency of any Credit Party, or any payment made to any Agent or Lender
        on
        the Obligations which any such Agent or Lender repays to the Borrowers pursuant
        to a court order in any bankruptcy, reorganization, arrangement, moratorium
        or
        other debtor relief proceeding, and each Guarantor waives any right to the
        deferral or modification of its obligations hereunder by reason of any such
        proceeding;
  (i) any
        act
        or omission which would not have discharged or affected the liability of
        a
        Guarantor had it been a principal debtor instead of a Guarantor or by anything
        done or omitted which but for this provision might operate to exonerate or
        discharge a Guarantor; or
  (j) any
        other
        action or circumstances which might otherwise constitute a legal or equitable
        discharge or defense of a surety or Guarantor.
  SECTION
        12.03 Independent
        Obligation .
  (a) The
        obligations of each Guarantor hereunder are independent of the obligations
        of
        any other Guarantor, any other party or any Borrower, and a separate action
        or
        actions may be brought and prosecuted against each Guarantor whether or not
        action is brought against any other Guarantor, any other party or any Borrower
        and whether or not any other Guarantor, any other party or any Borrower be
        joined in any such action or actions.
  (b) Each
        Guarantor shall be regarded, and shall be in the same position, as principal
        debtor with respect to the Guaranteed Obligations. Each Guarantor agrees
        that
        any notice or directive given at any time to the Administrative Agent that
        is
        inconsistent with the preceding paragraph shall be null and void and may
        be
        ignored by the Administrative Agent and the Lenders, and, in addition, may
        not
        be pleaded or introduced as evidence in any litigation relating to this Guaranty
        for the reason that such pleading or introduction would be at variance with
        the
        written terms of this Guaranty, unless the Agents and the Lenders have
        specifically agreed otherwise in writing. It is agreed among each Guarantor,
        the
        Administrative Agent and the Lenders that the foregoing waivers are of the
        essence of the transaction contemplated by the Loan Documents and that, but
        for
        this Guaranty and such waivers, the Agents and the Lenders would decline
        to
        enter into this Agreement.
  SECTION
        12.04 Demand
        by the Administrative Agent or the Lenders .
        In
        addition to the terms of the Guaranty set forth in SECTION
        12.01 ,
        and in
        no manner imposing any limitation on such terms, it is expressly understood
        and
        agreed that, if, at any time, the outstanding principal amount of the Guaranteed
        Obligations under this Agreement (including all accrued interest thereon)
        is
        declared to be immediately due and payable, then the Guarantors shall, without
        demand, pay to the holders of the Guaranteed Obligations the entire outstanding
        Guaranteed Obligations due and owing to such holders. Payment by the Guarantors
        shall be made to the Administrative Agent in immediately available funds
        to an
        account designated by the Administrative Agent, as the case may be, or at
        the
        address set forth herein for the giving of notice to the Administrative Agent
        or
        at any other address that may be specified in writing from time to time by
        the
        Administrative Agent, and shall be credited and applied to the Guaranteed
        Obligations.
  91
  SECTION
        12.05 Enforcement
        of Guaranty .
        In no
        event shall the Administrative Agent have any obligation (although it is
        entitled, at its option) to proceed against the Borrowers or any other Credit
        Party or any Collateral pledged to secure Guaranteed Obligations before seeking
        satisfaction from any or all of the Guarantors, and the Administrative Agent
        may
        proceed, prior or subsequent to, or simultaneously with, the enforcement
        of the
        Administrative Agent’s or the Term Loan Agent’s rights hereunder, to exercise
        any right or remedy it may have against any Collateral, as a result of any
        Lien
        it may have as security for all or any portion of the Guaranteed
        Obligations.
  SECTION
        12.06 Waiver .
        In
        addition to the waivers contained in SECTION
        11.03 ,
        the
        Guarantors waive, and agree that they shall not at any time insist upon,
        plead
        or in any manner claim or take the benefit or advantage of, any appraisal,
        valuation, stay, extension, marshaling of assets or redemption law, or
        exemption, whether now or at any time hereafter in force, which may delay,
        prevent or otherwise affect the performance by the Guarantors of their
        Guaranteed Obligations under, or the enforcement by the Collateral Agent,
        the
        Administrative Agent or the Lenders of, the Guaranty. The Guarantors hereby
        waive diligence, presentment and demand (whether for non-payment or protest
        or
        of acceptance, maturity, extension of time, change in nature or form of the
        Guaranteed Obligations, acceptance of further Collateral, release of further
        Collateral, composition or agreement arrived at as to the amount of, or the
        terms of, the Guaranteed Obligations, notice of adverse change in the Borrower’s
        financial condition or any other fact which might increase the risk to the
        Guarantors) with respect to any of the Guaranteed Obligations or all other
        demands whatsoever and waive the benefit of all provisions of law which are
        or
        might be in conflict with the terms of the Guaranty. The Guarantors represent,
        warrant and jointly and severally agree that, as of the date of this Agreement,
        their obligations under the Guaranty are not subject to any offsets or defenses
        against the Administrative Agent or the Lenders or any Credit Party of any
        kind.
        The Guarantors further jointly and severally agree that their obligations
        under
        this Guaranty shall not be subject to any counterclaims, offsets or defenses
        against the Collateral Agent, the Administrative Agent or any Secured Creditor
        or against any Credit Party of any kind which may arise in the
        future.
  SECTION
        12.07 Benefit
        of Guaranty .
        The
        provisions of the Guaranty are for the benefit of the Agents and the Lenders
        and
        their respective permitted successors, permitted transferees, endorsees and
        assigns, and nothing herein contained shall impair, as between any Credit
        Party
        and the Agents or the Lenders, the obligations of any Credit Party under
        the
        Loan Documents. In the event all or any part of the Guaranteed Obligations
        are
        transferred, endorsed or assigned by the Agents or any Lender to any Person
        or
        Persons in a manner permitted by this Agreement, any reference to “the Agents”
or “the Lender” herein shall be deemed to refer equally to such Person or
        Persons.
  92
  SECTION
        12.08 Modification
        of Guaranteed Obligations, Etc. Each
        Guarantor hereby acknowledges and agrees that the Agents and the Lenders
        may at
        any time or from time to time, with or without the consent of, or notice
        to, the
        Guarantors (in their capacity as Guarantors):
  (a) change
        or
        extend the manner, place or terms of payment of, or renew or alter all or
        any
        portion of, the Guaranteed Obligations;
  (b) take
        any
        action under or in respect of the Loan Documents in the exercise of any remedy,
        power or privilege contained therein or available to it at law, equity or
        otherwise, or waive or refrain from exercising any such remedies, powers
        or
        privileges;
  (c) amend
        or
        modify, in any manner whatsoever, the Loan Documents;
  (d) extend
        or
        waive the time for any Credit Party’s performance of, or compliance with, any
        term, covenant or agreement on its part to be performed or observed under
        the
        Loan Documents, or waive such performance or compliance or consent to a failure
        of, or departure from, such performance or compliance;
  (e) take
        and
        hold Collateral for the payment of the Guaranteed Obligations guaranteed
        hereby
        or sell, exchange, release, dispose of, or otherwise deal with, any property
        pledged, mortgaged or conveyed, or in which the Agents or the Lenders have
        been
        granted a Lien, to secure any Obligations;
  (f) release
        anyone who may be liable in any manner for the payment of any amounts owed
        by
        the Guarantors or any Credit Party to the Agents or any Secured
        Creditor;
  (g) modify
        or
        terminate the terms of any intercreditor or subordination agreement pursuant
        to
        which claims of other creditors of any Guarantor or any Credit Party are
        subordinated to the claims of the Agents and the Lenders;
  (h) apply
        any
        sums by whomever paid or however realized to any amounts owing by any Guarantor
        or any Credit Party to the Agents or any Secured Creditor in such manner
        as the
        Agents or any Secured Creditor shall determine in its discretion;
        and/or
  (i) the
        Agents and the Lenders shall not incur any liability to the Guarantors as
        a
        result thereof, and no such action shall impair or release the Guaranteed
        Obligations of the Guarantors or any of them under the Guaranty.
  SECTION
        12.09 Reinstatement .
  (a) The
        Guaranty shall remain in full force and effect and continue to be effective
        should any petition be filed by or against any Credit Party or any Guarantor
        for
        liquidation or reorganization, should any Credit Party or any Guarantor become
        insolvent or make an assignment for the benefit of creditors or should a
        receiver or trustee be appointed for all or any significant part of such
        Credit
        Party’s or such Guarantor’s assets, and shall continue to be effective or be
        reinstated, as the case may be, if at any time payment and performance of
        the
        Guaranteed Obligations, or any part thereof, is, pursuant to Applicable Law,
        rescinded or reduced in amount, or must otherwise be restored or returned
        by the
        Administrative Agent or any Secured Creditor, whether as a “voidable
        preference,” “fraudulent conveyance,” or otherwise, all as though such payment
        or performance had not been made. In the event that any payment, or any part
        thereof, is rescinded, reduced, restored or returned, the Guaranteed Obligations
        shall be reinstated and deemed reduced only by such amount paid and not so
        rescinded, reduced, restored or returned.
  93
  (b) If
        any
        claim is ever made upon any Agent or Secured Creditor for repayment or recovery
        of any amount or amounts received in payment or on account of any of the
        Obligations and any of the aforesaid payees repays all or part of said amount
        by
        reason of (i) any judgment, decree or order of any court or administrative
        body having jurisdiction over such payee or any of its property, or
        (ii) compliance by the Lenders or the Agents with any requirement of a
        Governmental Authority having jurisdiction over the Lenders or the Agents,
        then
        and in such event each Guarantor agrees that any such judgment, decree or
        order
        shall be binding upon it, notwithstanding any revocation of the Guaranty
        or
        other instrument evidencing any liability of the Borrowers or any termination
        of
        this Agreement, and each Guarantor shall be and remain liable to the aforesaid
        payees hereunder for the amount so repaid or recovered to the same extent
        as if
        such amount had never originally been received by any such payee. In the
        event
        that any payment, or any part thereof, is rescinded, reduced, restored or
        returned, the Guaranteed Obligations shall be reinstated and deemed reduced
        only
        by such amount paid and not so rescinded, reduced, restored or
        returned.
  SECTION
        12.10 Waiver
        of Subrogation, Etc. Notwithstanding anything to the contrary in the Guaranty or in any other
        Loan
        Document, each Guarantor hereby:
  (a) until
        the
        payment and satisfaction in full in cash of the Guaranteed Obligations,
        expressly waives, on behalf of itself and its successors and assigns (including
        any surety), any and all rights at law or in equity to subrogation, to
        reimbursement, to exoneration, to contribution, to indemnification, to set-off
        or to any other rights that could accrue to a surety against a principal,
        to a
        Guarantor against a principal, to a Guarantor against a maker or obligor,
        to an
        accommodation party against the party accommodated, to a holder or transferee
        against a maker, or to the holder of any claim against any Person, and which
        such Guarantor may have or hereafter acquire against any Credit Party in
        connection with or as a result of such Guarantor’s execution, delivery and/or
        performance of this Agreement, or any other documents to which such Guarantor
        is
        a party or otherwise; and
  (b) acknowledges
        and agrees (i) that this waiver is intended to benefit the Agents and the
        Lenders and shall not limit or otherwise effect any Guarantor’s liability
        hereunder or the enforceability of the Guaranty, and (ii) that the Agents,
        the Lenders and their respective successors and assigns are intended third-party
        beneficiaries of the waivers and agreements set forth in this SECTION
        12.10 and
        their rights under this SECTION
        12.10 shall
        survive payment in full of the Guaranteed Obligations.
  94
  SECTION
        12.11 Election
        of Remedies .
        If any
        Agent may, under Applicable Law, proceed to realize benefits under any of
        the
        Loan Documents giving the Agents and the Lenders a Lien upon any Collateral
        owned by any Credit Party, either by judicial foreclosure or by non-judicial
        sale or enforcement, the Collateral Agent may, at its sole option, determine
        which of such remedies or rights it may pursue without affecting any of such
        rights and remedies under this Guaranty. If, in the exercise of any of its
        rights and remedies, the Collateral Agent shall forfeit any of its rights
        or
        remedies, including its right to enter a deficiency judgment against any
        Credit
        Party, whether because of any Applicable Laws pertaining to “election of
        remedies” or the like, the Guarantors hereby consent to such action by any Agent
        and waive any claim based upon such action, even if such action by any Agent
        shall result in a full or partial loss of any rights of subrogation which
        the
        Guarantors might otherwise have had but for such action by any Agent. Any
        election of remedies that results in the denial or impairment of the right
        of
        any Agent to seek a deficiency judgment against any Credit Party shall not
        impair each Guarantor’s obligation to pay the full amount of the Guaranteed
        Obligations. In the event any Agent shall bid at any foreclosure or trustee’s
        sale or at any private sale permitted by law or the Loan Documents, such
        Agent
        may bid all or less than the amount of the Guaranteed Obligations and the
        amount
        of such bid need not be paid by such Agent but shall be credited against
        the
        Guaranteed Obligations. The amount of the successful bid at any such sale
        shall
        be conclusively deemed to be the fair market value of the Collateral and
        the
        difference between such bid amount and the remaining balance of the Guaranteed
        Obligations shall be conclusively deemed to be the amount of the Guaranteed
        Obligations guaranteed under the Guaranty, notwithstanding that any present
        or
        future law or court decision or ruling may have the effect of reducing the
        amount of any deficiency claim to which the Administrative Agent and the
        Lenders
        might otherwise be entitled but for such bidding at any such sale.
  SECTION
        12.12 Further
        Assurances .
        Each
        Guarantor agrees, upon the written request of the Administrative Agent, to
        execute and deliver to the Administrative Agent, from time to time, any
        additional instruments or documents reasonably considered necessary by the
        Administrative Agent to cause the Guaranty to be, become or remain valid
        and
        effective in accordance with its terms.
  SECTION
        12.13 Payments
        Free and Clear of Taxes . Except
        as
        set forth below, all payments required to be made by each Guarantor hereunder
        shall be made to the Administrative Agent and the Lenders free and clear
        of, and
        without deduction for, any and all present and future Taxes and other Taxes
        (but
        not Excluded Taxes). If any Guarantor shall be required by law to deduct
        any
        Taxes from or in respect of any sum payable hereunder, (a) the sum payable
        shall be increased as much as shall be necessary so that after making all
        required deductions (including deductions applicable to additional sums payable
        under this SECTION
        12.13 )
        the
        Administrative Agent or the Lenders, as applicable, receive an amount equal
        to
        the sum they would have received had no such deductions been made, (b) such
        Guarantor shall make such deductions, and (c) such Guarantor shall pay the
        full amount deducted to the relevant taxing or other authority in accordance
        with Applicable Law. Notwithstanding the foregoing, no Guarantor should be
        required to pay any such additional amounts to an Agent or a Lender with
        respect
        to any Taxes in respect of which the Borrowers would not be required to pay
        any
        additional amounts pursuant to SECTION
        3.04 if such
        Taxes were withheld or deducted by the Borrowers and the payment had been
        made
        by the Borrowers instead of the Guarantor. Within thirty (30) days after
        the
        date of any payment of Taxes, each applicable Guarantor shall furnish to
        the
        Administrative Agent the original or a certified copy of a receipt evidencing
        payment thereof. Except as set forth below, each Guarantor shall jointly
        and
        severally indemnify and, within ten (10) days of receipt of written demand
        therefor, pay the Administrative Agent and each Lender for the full amount
        of
        Taxes (including any Taxes imposed by any jurisdiction on amounts payable
        under
        this SECTION
        12.13 )
        paid by
        the Administrative Agent or such Lender, as appropriate, with respect to
        any
        payment by or on account of any obligation of a Guarantor hereunder and any
        penalties, interest and reasonable out-of-pocket expenses arising therefrom
        or
        with respect thereto, whether or not such Taxes were correctly or legally
        asserted. Notwithstanding the foregoing, a Guarantor shall not be required
        to
        indemnify a Lender or an Agent with respect to any Taxes in respect of which
        the
        Borrowers would not be required to indemnify the Lender or the Agent pursuant
        to SECTION
        3.04 if the
        payment had been made by the Borrowers and such Taxes arose with respect
        to any
        payment by or on account of any obligation of the Borrowers. If a
        Lender or Agent receives a refund in respect of Taxes or Other Tax as to
        which
        it has been indemnified by the Guarantor, and which the Guarantors have paid,
        pursuant to this SECTION
        12.13 ,
        it
        shall within thirty (30) days from the date of such receipt pay over such
        refund
        to the Guarantor net of all out-of-pocket expenses of such Lender or
        Agent.
  95
  SECTION
        12.14 Limitation
        on Amount Guarantied; Contribution by Guarantors . Anything
        contained in this ARTICLE
        XII to the
        contrary notwithstanding, if any Fraudulent Transfer Law is determined by
        a
        court of competent jurisdiction to be applicable to the obligations of any
        Guarantor under this Agreement, such obligations of such Guarantor hereunder
        shall be limited to a maximum aggregate amount equal to the largest amount
        that
        would not render its obligations hereunder subject to avoidance as a fraudulent
        transfer or conveyance under Section 548 of the Bankruptcy Code or any
        applicable provisions of the Uniform Fraudulent Transfer Act, the Uniform
        Fraudulent Conveyance Act or any other comparable state law (collectively,
        the
“ Fraudulent
        Transfer Laws ”),
        in
        each case after giving effect to all other liabilities of such Guarantor,
        contingent or otherwise, that are relevant under the Fraudulent Transfer
        Laws
        (excluding, however, any liabilities of such Guarantor (a) in respect of
        intercompany Indebtedness to the Borrowers or other Affiliates of the Borrowers
        to the extent that such Indebtedness would be discharged in an amount equal
        to
        the amount paid by such Guarantor hereunder, and (b) under any guarantee of
        any subordinated Indebtedness which guarantee contains a limitation as to
        maximum amount similar to that set forth in this SECTION
        12.14 ,
        pursuant to which the liability of such Guarantor hereunder is included in
        the
        liabilities taken into account in determining such maximum amount).
  ARTICLE
        XIII
 THE
        AGENTS
  SECTION
        13.01 Appointment
        Powers and Immunities; Delegation of Duties; Liability of Agents .
  (a) Each
        Lender hereby irrevocably designates and appoints GENERAL ELECTRIC CAPITAL
        CORPORATION as its Collateral Agent under this Agreement and the other Loan
        Documents and GENERAL ELECTRIC CAPITAL CORPORATION as Administrative Agent
        under
        this Agreement and the other Loan Documents. The provisions of this SECTION
        13.01 are
        solely for the benefit of the Agents and Lenders and no Credit Party nor
        any
        other Person, other than permitted sub-agents, shall have any rights as a
        third-party beneficiary of any of the provisions hereof. In performing its
        functions and duties under this Agreement and the other Loan Documents, each
        Agent shall act solely as an agent of Lenders and does not assume and shall
        not
        be deemed to have assumed any obligation toward or relationship of agency
        or
        trust with or for any Credit Party or any other Person. No Agent shall have
        duties or responsibilities except for those expressly set forth in this
        Agreement and the other Loan Documents. Unless otherwise provided, each Agent
        may execute its functions and duties under this Agreement and the other Loan
        Documents by or through agents, employees or attorneys-in-fact and shall
        be
        entitled to the advice of counsel concerning all matters pertaining to such
        functions and duties. No Agent shall be responsible for the negligence or
        misconduct of any agent or attorney-in-fact that it selects as long as such
        selection was made without gross negligence or willful misconduct. The duties
        of
        each Agent shall be mechanical and administrative in nature and no Agent
        shall
        have, or be deemed to have, by reason of this Agreement, any other Loan Document
        or otherwise, a fiduciary relationship in respect of any Lender. Except as
        expressly set forth in this Agreement and the other Loan Documents, no Agent
        shall have any duty to disclose, and shall not be liable for failure to
        disclose, any information relating to any Credit Party or any of such Credit
        Party’s Subsidiaries or any Account Debtor that is communicated to or obtained
        any Agent or any of its Affiliates in any capacity. No Agent nor any Agent’s
        Affiliates nor any Agent’s respective officers, directors, employees, agents or
        representatives shall be liable to any Lender for any action taken or omitted
        to
        be taken by it hereunder or under any other Loan Document, or in connection
        herewith or therewith, except for damages caused by its own gross negligence
        or
        willful misconduct.
  96
  (b) If
        the
        Administrative Agent or the Collateral Agent shall request instructions from
        the
        Required Lenders or all affected Lenders with respect to any act or action
        (including a failure to act) in connection with this Agreement or any other
        Loan
        Document, then the Administrative Agent or the Collateral Agent, as the case
        may
        be, shall be entitled to refrain from such act or taking such action unless
        and
        until such Agent shall have received instructions from the Required Lenders
        or
        all affected Lenders, as the case may be, and neither the Administrative
        Agent
        nor the Collateral Agent shall incur liability to any Person by reason of
        so
        refraining. Each Agent shall be fully justified in failing or refusing to
        take
        any action hereunder or under any other Loan Document (i) if such action
        would, in the opinion of such Agent, be contrary to law or the terms of this
        Agreement or any other Loan Document, (ii) if such action would, in the
        opinion of such Agent, expose such Agent to Environmental Liabilities and
        Costs
        or (iii) if such Agent shall not first be indemnified to its satisfaction
        against any and all liability and expense which may be incurred by it by
        reason
        of taking or continuing to take any such action. Without limiting the foregoing,
        no Lender shall have any right of action whatsoever against any Agent as
        a
        result of such Agent acting or refraining from acting hereunder or under
        any
        other Loan Document in accordance with the instructions of Required Lenders
        or
        all affected Lenders, as applicable.
  SECTION
        13.02 Reliance
        by Agents . Each
        Agent shall be entitled to rely, and shall be fully protected in relying,
        upon
        any writing, resolution, notice, consent, certificate, affidavit, letter,
        telegram, facsimile, telex or telephone message, statement or other document
        or
        conversation reasonably believed by it to be genuine and correct and to have
        been signed, sent, or made by the proper Person, and upon advice and statements
        of legal counsel (including counsel to the Borrowers or counsel to any Lender),
        independent accountants and other experts selected by such Agent. Each Agent
        shall be fully justified in failing or refusing to take any action under
        this
        Agreement or any other Loan Document unless it first shall receive such advice
        or concurrence of the Lenders as it deems appropriate and until such
        instructions are received, such Agent shall act, or refrain from acting,
        as it
        deems advisable. If the Administrative Agent or the Collateral Agent so
        requests, it first shall be indemnified to its reasonable satisfaction by
        the
        Lenders against any and all liability and expense that may be incurred by
        it by
        reason of taking or continuing to take any action under this Agreement or
        any
        other Loan Document. The Administrative Agent and the Collateral Agent in
        all
        cases shall be fully protected in acting, or in refraining from acting, under
        this Agreement or any other Loan Document in accordance with a request or
        consent of the Required Lenders or the Lenders, as required under this Agreement
        and any action taken or failure to act pursuant to such request or consent
        shall
        be binding upon all Lenders.
  97
  SECTION
        13.03 Defaults .
        With
        respect to its relationship with any of the Lenders, no Agent shall be deemed
        to
        have knowledge or notice of the occurrence of any Default or Event of Default,
        except with respect to defaults in the scheduled payment of principal and
        interest required to be paid to such Agent for the account of the Lenders
        and
        except with respect to Events of Default of which such Agent has actual
        knowledge due to receipt of a written notice thereof from a Lender or the
        Administrative Borrower referring to this Agreement, describing such Default
        or
        Event of Default, and stating that such notice is a “ Notice
        of Default ”.
        Such
        Agent promptly will notify the Lenders of its receipt of any such notice
        or of
        any Event of Default of which such Agent has actual knowledge. If any Lender
        obtains actual knowledge of any Event of Default, such Lender promptly shall
        notify the other Lenders and each Agent of such Event of Default. Each Lender
        shall be solely responsible for giving any notices to its Participants, if
        any.
        Subject to SECTION
        13.03 and SECTION
        13.07 ,
        each
        Agent shall take such action with respect to such Default or Event of Default
        as
        may be requested by the Required Lenders in accordance with ARTICLE
        XI ; provided , however ,
        that
        unless and until such Agent has received any such request, such Agent may
        (but
        shall not be obligated to) take such action, or refrain from taking such
        action,
        with respect to such Default or Event of Default as it shall deem advisable
        in
        its sole discretion.
  SECTION
        13.04 Rights
        as a Lender .
  (a) With
        respect to its Commitments and the Loans made by it, the Administrative Agent
        (and any successor acting as Administrative Agent, if any, as permitted by SECTION
        13.08(a) )
        in its
        capacity as a Lender under the Loan Documents shall have the same rights,
        privileges and powers under the Loan Documents as any other Lender and may
        exercise the same as though it were not acting as Administrative Agent, and
        the
        term “ Lender ”
or
        “ Lenders ”
shall,
        unless the context otherwise indicates, include the Administrative Agent
        in its
        individual capacity. The Administrative Agent (and any successor acting as
        Administrative Agent) and its Affiliates may (without having to account for
        the
        same to any Lender) accept deposits from, lend money to, make investments
        in and
        generally engage in any kind of banking, trust, principal investment or other
        business with a Borrower (and any of their Subsidiaries or Affiliates) as
        if it
        were not acting as Administrative Agent, and the Administrative Agent (and
        its
        successors) and its Affiliates may accept fees and other consideration from
        a
        Borrower (or any other Person) for services in connection with this Agreement
        or
        otherwise without having to account for the same to the Lenders.
  98
  (b) With
        respect to its Commitments and the Loans made by it, the Collateral Agent
        (and
        any successor acting as the Collateral Agent, if any, as permitted by SECTION
        13.08(b) in its
        capacity as a Lender under the Loan Documents shall have the same rights,
        privileges and powers under the Loan Documents as any other Lender and may
        exercise the same as though it were not acting as the Collateral Agent, and
        the
        term “ Lender ”
or
        “ Lenders ”
shall,
        unless the context otherwise indicates, include the Collateral Agent in its
        individual capacity. The Collateral Agent (and any successor acting as the
        Collateral Agent) and its Affiliates may (without having to account for the
        same
        to any Lender) accept deposits from, lend money to, make investments in and
        generally engage in any kind of banking, trust, principal investment or other
        business with a Borrower (and any of their Subsidiaries or Affiliates) as
        if it
        were not acting as the Collateral Agent, and the Collateral Agent (and its
        successors) and its Affiliates may accept fees and other consideration from
        a
        Borrower (or any other Person) for services in connection with this Agreement
        or
        otherwise without having to account for the same to the Lenders.
  SECTION
        13.05 Costs
        and Expenses; Indemnification . Each
        Agent may incur and pay fees, costs, and expenses under the Loan Documents
        to
        the extent such Agent deems reasonably necessary or appropriate for the
        performance and fulfillment of its functions, powers, and obligations pursuant
        to the Loan Documents, including, without limiting the generality of the
        foregoing, court costs, reasonable attorneys’ fees and expenses, costs of
        collection by outside collection agencies, auctioneer fees, costs of security
        guards, insurance premiums, taxes, or other amounts paid to protect or maintain
        the Collateral or to enhance the likelihood of payment of the Obligations
        following Default, whether or not a Borrower is obligated to reimburse the
        Lenders for such expenses pursuant to the Loan Agreement or otherwise (to
        the
        extent the Borrowers have not done so and without limiting its obligation
        to do
        so). Each Lender hereby agrees that it is and shall be obligated to pay to
        or
        reimburse the Administrative Agent and the Collateral Agent for the amount
        of
        such Lender’s Pro Rata Share thereof. Whether or not the transactions
        contemplated hereby are consummated, the Lenders shall indemnify upon demand
        the
        Agent-Related Persons (to the extent the Borrowers have not done so and without
        limiting the obligation of the Borrowers to do so), according to their Pro
        Rata
        Shares, from and against any and all Indemnified Matters (including, without
        limitation, Indemnified Matters arising under any Environmental Law as provided
        in SECTION
        14.19 ); provided , however ,
        that no
        Lender shall be liable for the payment to the Agent-Related Persons of any
        portion of such Indemnified Matters resulting solely from such Person’s gross
        negligence or willful misconduct as determined in a final order by a court
        of
        competent jurisdiction. Without limitation of the foregoing, each Lender
        shall
        reimburse the Administrative Agent or the Collateral Agent, as the case may
        be,
        upon demand for such Lender’s ratable share of any costs or out-of-pocket
        expenses (including reasonable attorneys’ fees and expenses) incurred by such
        Agent in connection with the preparation, execution, delivery, administration,
        modification, amendment, or enforcement (whether through negotiations, legal
        proceedings or otherwise) of, or legal advice in respect of rights or
        responsibilities under, this Agreement, any other Loan Document, or any document
        contemplated by or referred to herein. The undertaking in this SECTION
        13.05 shall
        survive the payment of all Obligations hereunder and the resignation or
        replacement of any Agent.
  SECTION
        13.06 Non-Reliance
        on Agents and Other Lenders .
        Each
        Lender acknowledges that none of the Agent-Related Persons has made any
        representation or warranty to it, and that no act by any Agent hereinafter
        taken, including any review of the affairs or Property of any of the Credit
        Parties or their Subsidiaries, shall be deemed to constitute any representation
        or warranty by any Agent-Related Person to any Lender. Each Lender represents
        to
        each Agent that it has, independently and without reliance upon any
        Agent-Related Person and based on such documents and information as it has
        deemed appropriate, made its own appraisal of and investigation into the
        business, prospects, operations, property, financial and other condition
        and
        creditworthiness of the Borrowers and any other Person (other than the Lenders)
        party to a Loan Document, and all applicable bank regulatory laws relating
        to
        the transactions contemplated hereby, and made its own decision to enter
        into
        this Agreement and to extend credit to the Borrowers. Each Lender also
        represents that it will, independently and without reliance upon any
        Agent-Related Person and based on such documents and information as it shall
        deem appropriate at the time, continue to make its own credit analysis,
        appraisals and decisions in taking or not taking action under this Agreement
        and
        the other Loan Documents, and to make such investigations as it deems necessary
        to inform itself as to the business, prospects, operations, property, financial
        and other condition and creditworthiness of the Borrowers and any other Person
        (other than the Lenders) party to a Loan Document. Except for notices, reports
        and other documents expressly herein required to be furnished to the Lenders
        by
        such Agent, no Agent shall have any duty or responsibility to provide any
        Lender
        with any credit or other information concerning the business, prospects,
        operations, Property, financial and other condition or creditworthiness of
        the
        Borrowers or of any other Person party to a Loan Document that may come into
        the
        possession of any of the Agent-Related Persons.
  99
  SECTION
        13.07 Failure
        to Act . Except
        for action expressly required of any Agent under the Loan Documents, such
        Agent
        shall in all cases be fully justified in failing or refusing to act under
        any
        Loan Document unless it shall receive further assurances to its satisfaction
        from the Lenders of their indemnification obligations under SECTION
        13.05 against
        any and all liability and expense that may be incurred by it by reason of
        taking
        or continuing to take any such action.
  SECTION
        13.08 Resignation
        of Agent .
  (a) Subject
        to the appointment and acceptance of a successor Administrative Agent as
        provided below, the Administrative Agent may resign at any time by notice
        to the
        Lenders and the Administrative Borrower. Upon any such resignation, the Required
        Lenders with the consent of the Administrative Borrower (which consent shall
        not
        be unreasonably withheld) shall have the right to appoint a successor
        Administrative Agent. If no successor Administrative Agent shall have been
        appointed by the Required Lenders and consented to by the Administrative
        Borrower and no successor Administrative Agent shall have accepted such
        appointment within thirty (30) days after the retiring Administrative Agent’s
        giving of notice of resignation, then the retiring Administrative Agent may,
        on
        behalf of the Lenders, appoint a successor Administrative Agent; provided , however ,
        if the
        failure to do so was not a result of the failure by the Administrative Borrower
        to consent to any appointment, the Administrative Borrower shall retain the
        right to consent; provided , further ,
        that if
        the failure to do so was not a result of the failure of the Required Lenders
        to
        appoint such successor, the Required Lenders shall obtain the right to consent
        to such successor. Upon the acceptance of any appointment as the Administrative
        Agent by a successor Administrative Agent, such successor Administrative
        Agent
        shall thereupon succeed to and become vested with all the rights, remedies,
        powers, privileges, duties and obligations of the retiring Administrative
        Agent,
        and the retiring Administrative Agent shall be discharged from its duties
        and
        obligations, under the Loan Documents. After any retiring Administrative
        Agent’s
        resignation as Administrative Agent, the provisions of this ARTICLE
        XIII shall
        continue in effect for its benefit in respect of any actions taken or omitted
        to
        be taken by it while it was acting as Administrative Agent.
  100
  (b) Subject
        to the appointment and acceptance of a successor Collateral Agent as provided
        below, the Collateral Agent may resign upon thirty (30) days, prior written
        notice to the Lenders and the Administrative Borrower. Upon any such
        resignation, the Required Lenders with the consent of the Administrative
        Borrower (which consent shall not be unreasonably withheld or delayed) shall
        have the right to appoint a successor Collateral Agent. If no successor
        Collateral Agent shall have been appointed by the Required Lenders and consented
        to by the Administrative Borrower and no successor Collateral Agent shall
        have
        accepted such appointment within thirty (30) days after the retiring Collateral
        Agent’s giving of notice of resignation, then the retiring Collateral Agent may,
        on behalf of the Lenders, appoint a successor Collateral Agent; provided , however ,
        if the
        failure to do so was not a result of the failure by the Administrative Borrower
        to consent to any appointment, the Administrative Borrower shall retain the
        right to consent. Upon the acceptance of any appointment as Collateral Agent
        by
        a successor Collateral Agent, such successor Collateral Agent shall thereupon
        succeed to and become vested with all the rights, remedies, powers, privileges,
        duties and obligations of the retiring Collateral Agent, and the retiring
        Collateral Agent shall be discharged from its duties and obligations, under
        the
        Loan Documents. After any retiring Collateral Agent’s resignation as the
        Collateral Agent, the provisions of this ARTICLE
        XIII shall
        continue in effect for its benefit in respect of any actions taken or omitted
        to
        be taken by it while it was acting as the Collateral Agent.
  SECTION
        13.09 Collateral
        Sub-Agents .
        Each
        Lender by its execution and delivery of this Agreement (or any Assignment
        and
        Acceptance hereunder), agrees that, in the event it shall hold any monies
        or
        other investments on account of the Borrowers or any other Credit Party,
        such
        monies or other investments shall be held in the name and under the control
        of
        the Administrative Agent or such Lender, and the Administrative Agent or
        such
        Lender shall hold such monies or other investments as a collateral sub-agent
        for
        Administrative Agent and Collateral Agent under this Agreement and the other
        Loan Documents. The Borrowers and each other Credit Party, by its execution
        and
        delivery of this Agreement, hereby consents to the foregoing.
  SECTION
        13.10 Communications
        by the Borrowers .
        Except
        as otherwise provided in this Agreement, the Borrowers’ communications with
        respect to the Loan Documents shall be with the Administrative Agent or the
        Collateral Agent, as the case may be, and the Borrowers shall be under no
        obligation to communicate directly with the Lenders.
  SECTION
        13.11 Collateral
        Matters .
  (a) The
        Lenders hereby irrevocably authorize the Collateral Agent, at its option
        and in
        its sole discretion, to release any Lien on any Collateral (i) upon the
        termination of the Commitments and payment and satisfaction in full of all
        Obligations owed to the Lenders (other than those contingent Obligations
        for
        reimbursement and indemnity that expressly survive the termination of this
        Agreement); (ii) constituting property being sold or disposed of if a
        release is required or desirable in connection therewith and if the
        Administrative Borrower certifies in writing to the Collateral Agent that
        the
        sale or disposition is permitted under this Agreement or the other Loan
        Documents (and the Collateral Agent may rely conclusively on any such
        certificate, without further inquiry); (iii) constituting property in which
        the Borrowers owned no interest at the time the security interest was granted
        or
        at any time thereafter; (iv) constituting property leased to the Borrowers
        under a lease that has expired or is terminated in a transaction permitted
        under
        this Agreement; (v) constituting Equipment which, in the aggregate with all
        other dispositions of Equipment covered by this clause (v) ,
        has a
        fair market value or book value, whichever is less, of five million Dollars
        ($5,000,000) or less in any single fiscal year; or (vi) any other release
        consented by the Required Lenders. Upon request by the Collateral Agent or
        the
        Borrowers at any time, the Administrative Agent and the Lenders will confirm
        in
        writing the Collateral Agent’s authority to release any such Liens on particular
        types or items of Collateral pursuant to this SECTION
        13.11 ; provided , however ,
        that
        (A) the Collateral Agent shall not be required to execute any document
        necessary to evidence such release on terms that, in the Collateral Agent’s
        opinion, would expose the Collateral Agent to liability or create any obligation
        or entail any consequence other than the release of such Lien without recourse,
        representation, or warranty, and (B) such release shall not in any manner
        discharge, affect, or impair the Obligations or any Liens (other than those
        expressly being released) upon (or obligations of the Borrowers in respect
        of)
        all interests retained by the Borrowers in any asset(s) transferred, including,
        the proceeds of any sale, all of which shall continue to constitute part
        of the
        Collateral.
  101
  (b) Neither
        the Administrative Agent not the Collateral Agent shall have any obligation
        whatsoever to any other Lenders to assure that the Collateral exists or is
        owned
        by the applicable Credit Party or is cared for, protected, or insured or
        has
        been encumbered, or that all or any portion of the Liens securing the
        Obligations have been properly or sufficiently or lawfully created, perfected,
        protected, or enforced or are entitled to any particular priority, or to
        exercise at all or in any particular manner or under any duty of care,
        disclosure or fidelity, or to continue exercising, any of the rights,
        authorities and powers granted or available to the Administrative Agent or
        the
        Collateral Agent pursuant to any of the Loan Documents, it being understood
        and
        agreed that in respect of the Collateral, or any act, omission or event related
        thereto, subject to the terms and conditions contained herein, the
        Administrative Agent and the Collateral Agent each may act in any manner
        it may
        deem appropriate, in its sole discretion given its own interest in the
        Collateral and that neither the Administrative Agent nor the Collateral Agent
        shall have any other duty or liability whatsoever to any other Lender as
        to any
        of the foregoing, except as otherwise expressly provided herein.
  SECTION
        13.12 Restrictions
        on Actions by the Agents and the Lenders; Sharing Payments .
  (a) The
        Administrative Agent and each of the Lenders agrees that it shall not, without
        the express consent of the Collateral Agent, and that it shall, to the extent
        it
        is lawfully entitled to do so, upon the request of the Administrative Agent
        and
        the Collateral Agent, set-off against the Obligations, any amounts owing
        by such
        Lenders to the Credit Parties or any accounts of the Credit Parties now or
        hereafter maintained with such Lenders. The Administrative Agent and each
        of the
        Lenders further agrees that it shall not, unless specifically requested to
        do so
        by the Collateral Agent, take or cause to be taken any action, including
        the
        commencement of any legal or equitable proceedings, to foreclose any Lien
        on, or
        otherwise enforce any security interest in, any of the Collateral the purpose
        of
        which is, or could be, to give such Lenders any preference or priority against
        the other Lenders with respect to the Collateral.
  102
  (b) If,
        at
        any time or times any Lender shall receive (i) by payment, foreclosure,
        set-off or otherwise, any proceeds of Collateral or any payments with respect
        to
        the Obligations arising under, or relating to, this Agreement or the other
        Loan
        Documents, except for any such proceeds or payments received by such Lender
        from
        the Administrative Agent pursuant to the terms of this Agreement, or
        (ii) payments from the Administrative Agent in excess of such Lender’s
        ratable portion of all such distributions by the Administrative Agent, such
        Lender promptly shall turn the same over to the Administrative Agent, in
        kind,
        and with such endorsements as may be required to negotiate the same to the
        Administrative Agent, or in same-day funds, as applicable, for the account
        of
        the Lenders and for apportionment and application to the Obligations in
        accordance with SECTION
        3.02(c) and SECTION
        3.03(b) .
  SECTION
        13.13 Several
        Obligations; No Liability .
        Notwithstanding that certain of the Loan Documents now or hereafter may have
        been or will be executed only by or in favor of an Agent in its capacity
        as
        such, and not by or in favor of the Lenders, any and all obligations on the
        part
        of the Administrative Agent, if any, to make any credit available hereunder
        shall constitute the several (and not joint) obligations of the respective
        Lenders on a ratable basis, according to their respective Commitments, to
        make
        an amount of such credit not to exceed, in principal amount, at any one time
        outstanding, the amount of their respective Commitments. Nothing contained
        herein shall confer upon any Lender any interest in, or subject any Lender
        to
        any liability for, or in respect of, the business, assets, profits, losses,
        or
        liabilities of any other Lenders. Each Lender shall be solely responsible
        for
        notifying its Participants of any matters relating to the Loan Documents
        to the
        extent any such notice may be required, and no Lender shall have any obligation,
        duty, or liability to any Participant of any other Lender. Except as provided
        in SECTION
        13.05 ,
        no
        Agent and no Lender shall have any liability for the acts of any other Agent
        or
        any other Lender. No Lender shall be responsible to the Borrowers or any
        other
        Person for any failure by any other Lender to fulfill its obligations to
        make
        credit available hereunder, nor to advance for it or on its behalf in connection
        with its Commitment, nor to take any other action on its behalf hereunder,
        under
        any other Loan Document or in connection with the financing contemplated
        herein.
  ARTICLE
        XIV
 MISCELLANEOUS
  SECTION
        14.01 Notices,
        Etc .  All
        notices and other communications provided for hereunder shall be in writing
        and
        shall be mailed, certified mail return receipt requested, telecopied, emailed
        or
        delivered by overnight delivery service or in person:
  if
          to
          the Credit Parties, c/o the Administrative Borrower at the following
          address :
  James
          River Coal Company
 901
          E.
          Byrd Street, Suite 1600
 Richmond,
          VA 23219
 Attn:
          Samuel M. Hopkins II
  103
  with
          a
          copy to :
  Kilpatrick
          Stockton LLP
 1100
          Peachtree Street, Suite 2800
 Atlanta,
          GA 30309
 Attn:
          Douglas S. Gosden
 Telephone:
          404-815-6415
 Facsimile:
          404-541-3112
  if
          to
          the Administrative Agent, at the following address :
  General
          Electric Capital Corporation
 201
          Merritt Seven, Third Floor
 Norwalk,
          CT 06851
 Facsimile:  (203)
          956-4238
 Attn:
          James River Account Manager
  with
          a
          copy to:
  Bingham
          McCutchen LLP
 150
          Federal St.
 Boston,
          MA 02110
 Facsimile:
          (617) 951-8736
 Attn:
          Robert A. J. Barry
  if
          to
          the Collateral Agent, at the following address :
  General
          Electric Capital Corporation
 201
          Merritt Seven, Third Floor
 Norwalk,
          CT 06851
 Facsimile:  (203)
          956-4238
 Attn:
          James River Account Manager
  with
          a
          copy to:
  Bingham
          McCutchen LLP
 150
          Federal St.
 Boston,
          MA 02110
 Facsimile:
          (617) 951-8736
 Attn:
          Robert A. J. Barry
  104
 or,
        as to
        each party, at such other address as shall be designated by such party in
        a
        written notice to the other party complying as to delivery with the terms
        of
        this SECTION
        14.01 .
        All
        such notices and other communications shall be effective, (i) if mailed,
        when received or five (5) days after deposited in the mails as registered
        or
        certified (in each case with return receipt requested) with postage pre-paid
        and
        properly addressed, whichever occurs first, (ii) if telecopied, when
        transmitted and confirmation received, (iii) if emailed, when transmitted
        and
        confirmation acknowledged by recipient, or (iv) if delivered, upon
        delivery, except that notices to the Administrative Agent pursuant to ARTICLE
        II shall
        not be effective until received by the Administrative Agent.
  SECTION
        14.02 Amendments,
        Etc .  No
        amendment or waiver of any provision of this Agreement, any Loan or any other
        Loan Document, nor consent to any departure by any Credit Party therefrom,
        shall
        in any event be effective unless the same shall be in writing and signed
        by the
        Borrowers (or the Administrative Borrower) and the Required Lenders (or the
        Administrative Agent at the request of the Required Lenders), and then such
        waiver or consent shall be effective only in the specific instance and for
        the
        specific purpose for which given; provided , however ,
        that no
        amendment, waiver or consent shall, in each case, without the consent of
        the
        Administrative Agent, the Borrowers and each Lender directly affected
        thereby;
  (a) increase
        or extend any Commitment of such Lender;
  (b) reduce
        or
        forgive the principal of, or interest on, any Loan made by such Lender, or
        reduce or forgive any fees or other amounts payable hereunder to such Lender
        or
        release or discharge the Borrowers from their obligations to make such
        payments;
  (c) postpone
        any date fixed for any scheduled payment of principal of, or interest on,
        any
        Loan or any other monetary Obligations owed to such Lender;
  (d) other
        than as expressly permitted hereunder or in the other Loan Documents, release
        (or otherwise limit such Person’s liability with respect to its Obligations) any
        Borrower or any Guarantor;
  (e) release,
        or consent to the Credit Parties disposition of, all or substantially all
        of the
        Collateral, or subordinate the right of the Collateral Agent and the Lenders
        with respect to all or substantially all of the Collateral (except as expressly
        permitted herein or in the other Loan Documents);
  (f) amend,
        modify or waive SECTION
        2.09 , SECTION
        3.03(a) , SECTION
        3.03(b) or SECTION
        3.03(c) ,
        or this SECTION
        14.02 or the
        definitions of “Pro Rata Share”; or
  105
  (g) change
        the percentage specified in the definition of Required Lenders which shall
        be
        required for the Lenders or any of them to take any action under this Agreement;
        or
  No
        amendment, waiver or consent in relation to any provision of the Loan Documents
        shall affect the rights, duties or obligations of any Agent or the L/C Issuer
        without obtaining the consent of such Agent or L/C Issuer, as the case may
        be.
  SECTION
        14.03 Non-Consenting
        Lenders .
  (a) If,
        in
        connection with any proposed amendment, waiver or consent requiring consent
        of
“each Lender” or “each Lender affected thereby,” the consent of the Required
        Lenders is obtained, but the consent of other necessary Lenders is not obtained
        (any such Lender whose consent is necessary but not obtained being referred
        to
        herein as a “ Non-Consenting
        Lender ”),
        then
        so long as no Agent is a Non-Consenting Lender and no Default or Event of
        Default has occurred and is continuing, the Borrowers may elect to replace
        a
        Non-Consenting Lender as a Lender party to this Agreement, provided  that ,
        concurrently with such replacement, (a) another bank or other entity that
        is reasonably satisfactory to the Administrative Borrower and reasonably
        satisfactory to the Administrative Agent, shall agree, as of such date, to
        purchase for cash the Loans and other Obligations due to the Non-Consenting
        Lender pursuant to an Assignment and Acceptance and to become a Lender for
        all
        purposes under this Agreement and to assume all obligations of the
        Non-Consenting Lender to be terminated as of such date and to comply with
        the
        requirements of SECTION
        14.10 ,
        and
        (b) the Borrowers shall pay to such Non-Consenting Lender in same day funds
        on the day of such replacement (i) all principal, interest, fees and other
        amounts then accrued but unpaid to such Non-Consenting Lender by the Borrowers
        hereunder to and including the date of termination, including, without
        limitation, payments due to such Non-Consenting Lender under SECTION
        3.04 ,
        and
        (ii) an amount, if any, equal to the payment which would have been due to
        such Lender on the day of such replacement under this SECTION
        14.03 had the
        Loans of such Non-Consenting Lender been prepaid on such date rather than
        sold
        to the replacement Lender, in each case other than the amount of the Applicable
        Payment Fee and Applicable Reduction Fee. Any processing or recordation fees
        associated with the transfer of a Non-Consenting Lender’s Loans shall be for the
        account of the Borrowers.
  (b) Defaulting Lenders .
        The
        failure of any Defaulting Lender to make any Advance, Loan or any payment
        required to be made by such Lender hereunder shall not relieve any other
        Lender
        (each such other Lender, an “ Other
        Lender ”)
        of any
        of its obligations to make an Advance, Loan or payment or otherwise, but
        none of
        any Other Lender, the Administrative Agent shall be responsible to the Credit
        Parties or to any other Person for the failure of any Defaulting Lender to
        meet
        its obligations hereunder. Notwithstanding anything set forth herein to the
        contrary, a Defaulting Lender shall not have any voting or consent rights
        under
        or with respect to any Loan Document or constitute a “Lender” (or be included in
        the calculation of “Required Lenders” as applicable) for any voting or consent
        rights under or with respect to any Loan Document. At the Administrative
        Borrower’s request with the Administrative Agent’s consent and in the
        Administrative Agent’s sole discretion, the Administrative Agent (or a Person
        reasonably acceptable to the Administrative Agent) shall have the right (but
        shall have no obligation) to purchase from any Defaulting Lender, and each
        Defaulting Lender agrees that it shall, at Administrative Agent’s request, sell
        and assign to Administrative Agent (or to such Person), all right, title
        and
        interest of such Defaulting Lender under the Loan Documents for an amount
        equal to the principal balance of all Loans held by such Defaulting Lender
        and all accrued interest and fees with respect thereto through the date of
        sale,
        such purchase and sale to be consummated pursuant to an executed Assignment
        and
        Acceptance.
  106
  SECTION
        14.04 No
        Waiver; Remedies, Etc. No
        failure on the part of the Lenders or any Agent to exercise, and no delay
        in
        exercising, any right hereunder or under any other Loan Document shall operate
        as a waiver thereof, nor shall any single or partial exercise of any right
        under
        any Loan Document preclude any other or further exercise thereof or the exercise
        of any other right. The rights and remedies of the Lenders and the Agents
        provided herein and in the other Loan Documents are cumulative and are in
        addition to, and not exclusive of, any rights or remedies provided by law.
        The
        rights of the Lenders and the Agents under any Loan Document against any
        party
        thereto are not conditional or contingent on any attempt by the Lenders and
        the
        Agents to exercise any of their rights under any other Loan Document against
        such party or against any other Person.
  SECTION
        14.05 Expenses;
        Taxes; Attorneys’ Fees . The
        Borrowers will pay upon demand therefor, all of the following fees, costs,
        expenses and other charges (the “ Lender
        Expenses ”):
  (a) all
        reasonable out-of-pocket fees, costs and expenses incurred by or on behalf
        of
        any Agent, (including attorneys, consultants, advisors and agents retained
        by
        such Agent) and miscellaneous disbursements, examination, and travel, lodging
        and meals arising from or relating to or incurred in (i) the negotiation,
        preparation, execution, delivery, performance, administration, monitoring,
        amendment or termination of this Agreement, the other Loan Documents and
        all
        other documents and agreements relating to the transactions contemplated
        hereby
        or thereby (whether incurred before or after the date of this Agreement)
        or any
        consents, amendments, waivers or other modifications thereof, whether or
        not
        such documents become effective or are given, (ii) the preservation and
        protection of any of the Agent’s or Lender’s rights under this Agreement or the
        other Loan Documents, (iii) the filing of any petition, complaint, answer,
        motion or other pleading by any Agent or the Lenders, or the taking of any
        action in respect of the Collateral or other security, in connection with
        this
        Agreement or any other Loan Document, (iv) the protection, collection,
        lease, sale, taking possession, liquidation or release of any Collateral
        or
        other security in connection with this Agreement or any other Loan Document,
        (v) any attempt to create, perfect, record, correct, release or enforce any
        Lien or security interest in any Collateral or other security in connection
        with
        this Agreement or any other Loan Document, (vi) any attempt to enhance the
        likelihood of repayment of the Obligations or to collect any Obligations
        from
        any Credit Party, any Collateral or any other source of repayment,
        (vii) all collateral audit, appraisal and valuation fees and charges
        (including any expenses and allocated costs of personnel employed by an Agent)
        and all financial advisor fees and expenses, and (viii) otherwise in
        connection with the Lenders’ transactions with the Credit Parties or their
        Subsidiaries, including fees or charges for photocopying, notarization, couriers
        and messengers, telecommunication, public record searches (including tax
        lien,
        litigation, and UCC searches, searches with the patent and trademark office,
        the
        copyright office or any other governmental or central registry), filing,
        recording, publication, real estate surveys, title policies and endorsements,
        environmental audits, insurance costs and any other out-of-pocket expenses
        necessary or desirable to administer the Loan Documents or to create or perfect
        the liens in favor of the Collateral Agent or the Lenders or which the Borrowers
        are required to pay hereunder,
  107
  (b) all
        reasonable fees, costs and expenses incurred in obtaining any advice regarding
        any Credit Party, Loan Document or transaction contemplated hereby or thereby
        from professionals (including, without limitation, the reasonable fees of
        attorneys, auditors, accountants, advisors and consultants) for any Agent
        and,
        during the continuance of an Event of Default, a single counsel for all Lenders
        to the extent that such fees, costs and expenses are not otherwise recoverable
        pursuant to any other provision of this Agreement or any other Loan
        Document,
  (c) all
        liabilities and costs arising from or in connection with the past, present
        or
        future operations of a Credit Party involving any damage to real or personal
        Property or natural resources or harm or injury alleged to have resulted
        from
        any Release of Hazardous Materials on, upon or into such Property,
  (d) all
        Environmental Liabilities and Costs incurred in connection with any Collateral,
        the Loan Documents or any Credit Party including any Remedial Action for
        any
        Hazardous Materials present or arising out of the operations of any facility
        of
        a Credit Party,
  (e) all
        liabilities and costs incurred in connection with any Environmental
        Lien,
  (f) all
        stamp, document, transfer, recording or filing taxes or fees and similar
        impositions now or hereafter determined by the Agent to be payable in connection
        with this Agreement or any other Loan Document, and any and all present or
        future claims, liabilities or losses with respect to or resulting from any
        omission to pay or delay in paying any such taxes, fees or
        impositions,
  (g) all
        broker fees if any with respect to any broker retained by a Credit Party
        or any
        Subsidiary of a Credit Party that may become due in the connection with the
        transactions contemplated by this Agreement,
  (h) during
        the continuance of an Event of Default, all amounts expended by the Agents,
        if
        any, to correct a Credit Party’s failure to (i)  make any payments or
        deposits with respect to any taxes of any kind or nature to the extent that
        such
        payments or deposits are due and payable prior to delinquency, (ii)  make
        any payments or deposits with respect to any other governmental assessment
        prior
        to the time that any Lien may inure against any property of any Credit Party,
        or
        (iii)  make any payments or deposits with respect to any insurance premiums
        then due and payable or otherwise comply with SECTION
        8.03 ,
        which
        amounts the Administrative Agent or the Collateral Agent, each in its sole
        discretion and without prior notice to the Borrowers, may but shall not be
        required to make payment of the same or any part thereof, or, in the case
        of any
        failure to comply with SECTION
        8.03 ,
        make
        payments to obtain and maintain insurance policies of the type described
        in SECTION
        8.03 ;
  108
  (i) all
        other
        costs or expenses required to be paid by a Credit Party or its Subsidiaries
        under any of the Loan Documents that are paid, advanced, or incurred by the
        Lenders,
  (j) charges
        paid or incurred by an Agent resulting from the dishonor of checks,
  (k) reasonable
        expenditures made by any Agent in connection with the custody or preservation
        of
        any of the Collateral or of the Liens in favor of the Collateral Agent,
        including payment of any amounts to preserve rights of the Credit Parties
        under
        any Material Contracts or other agreements necessary or desirable to maintain
        the value of the Collateral,
  (l) reasonable
        costs and expenses paid or incurred by any Agent or one or more of the Lenders
        in enforcing or defending the Loan Documents or in connection with the
        transactions contemplated by the Loan Documents or the relationship of any
        one
        or more of the Lenders with any Credit Party or any Subsidiary of a Credit
        Party, and
  (m) each
        Agent’s reasonable costs and expenses (including attorneys’, accountants’,
        consultants’, and other advisors’ fees and expenses) and reasonable fees, costs
        and expenses for one counsel to separately represent the Lenders, in each
        case,
        incurred after the occurrence of any Default or Event of Default, including
        in
        any forbearance, workout or restructuring of the Obligations, in any bankruptcy
        or insolvency case or proceeding or in terminating, enforcing, or defending
        the
        Loan Documents, irrespective of whether suit is brought, or in taking any
        Remedial Action concerning the Collateral.
  SECTION
        14.06 Right
        of Set-Off, Sharing of Payments, Etc .
  (a) Upon
        the
        occurrence and during the continuance of any Event of Default, and in addition
        to (and without limitation of) any right of set-off, banker’s lien or
        counterclaim any Lender may otherwise have, each Lender may, and is hereby
        authorized by the Credit Parties to, at any time and from time to time, without
        notice to the Credit Parties (any such notice being expressly waived by the
        Credit Parties), to the fullest extent permitted by law, set-off and apply
        any
        and all deposits (general or special, time or demand, provisional or final)
        at
        any time held and other indebtedness at any time owing by such Lender to
        or for
        the credit or the account of the Credit Parties against any and all Obligations
        now or hereafter existing under any Loan Document, irrespective of whether
        or
        not the Lenders shall have made any demand hereunder or thereunder and although
        such obligations may be contingent or unmatured. During the continuance of
        any
        Event of Default, the Lenders may, and are hereby authorized to, at any time
        and
        from time to time, without notice to the Credit Parties (any such notice
        being
        expressly waived by the Credit Parties), to the fullest extent permitted
        by law,
        set-off and apply any and all deposits (general or special, time or demand,
        provisional or final) at any time held and other indebtedness at any time
        owing
        by the Lenders to or for the credit or the account of the Credit Parties
        against
        any and all Obligations now or hereafter existing under any Loan Document,
        irrespective of whether or not the Lenders shall have made any demand hereunder
        or thereunder. The Lenders agree to notify the Administrative Borrower, the
        Collateral Agent and the Administrative Agent promptly after any such set-off
        and application made by the Lenders, provided  that the
        failure to give such notice to the Administrative Borrower shall not affect
        the
        validity of such set-off and application. The rights of the Lenders under
        this SECTION
        14.06 are in
        addition to other rights and remedies which the Lenders may have.
  109
  (b) Nothing
        contained in this SECTION
        14.06 shall
        require any Lender to exercise any such right or shall affect the right of
        any
        Lender to exercise, and retain the benefits of exercising, any such right
        with
        respect to any other Indebtedness or Obligation of the Credit Parties. If,
        under
        any applicable bankruptcy, insolvency or other similar law, any Lender receives
        a secured claim in lieu of a set-off to which this SECTION
        14.06 applies,
        such Lender shall, to the extent practicable, exercise its rights in respect
        of
        such secured claim in a manner consistent with the rights of the Lenders
        entitled under SECTION
        3.03(b) and this SECTION
        14.06 to share
        in the benefits of any recovery on such secured claim.
  SECTION
        14.07 Severability .
        Any
        provision of this Agreement, which is prohibited or unenforceable in any
        jurisdiction shall, as to such jurisdiction, be ineffective to the extent
        of
        such prohibition or unenforceability without invalidating the remaining portions
        hereof or affecting the validity or enforceability of such provision in any
        other jurisdiction.
  SECTION
        14.08 Replacement
        of Lenders . If
        (a) a
        Lender requests compensation under SECTION
        3.04 , SECTION
        4.02 ,
        or SECTION
        4.03 ,
        or if
        the Credit Parties are required to pay any additional amount to any Lender
        or
        any Governmental Authority for the account of any Lender pursuant to SECTION
        3.04 ,
        and
        such compensation or additional amount is not applicable to the Lenders
        generally, or (b) if any Lender defaults in its obligation to fund Loans
        hereunder, then in the case of either (a) or (b) of this SECTION
        14.08 ,
        the
        Credit Parties may, at its sole expense, upon notice to such Lender and the
        Administrative Agent, require such Lender to assign and delegate, without
        recourse (in accordance with and subject to the restrictions contained in
        this SECTION
        14.08 ),
        all
        its interests, rights and obligations under this Agreement to an assignee
        that
        shall assume such obligations (which assignee may be another Lender, if a
        Lender
        accepts such assignment); provided
        that ,
        (i) the Credit Parties shall have received the prior written consent of the
        Administrative Agent, which consent shall not unreasonably be withheld, and
        (ii) such Lender shall have received payment of an amount equal to the
        outstanding principal of its Loans, accrued interest thereon, accrued fees
        and
        all other amounts payable to it hereunder, from the assignee (to the extent
        of
        such outstanding principal and accrued interest and fees) or the Credit Parties
        (in the case of all other amounts). A Lender shall not be required to make
        any
        such assignment and delegation if, prior thereto, as a result of a waiver
        by
        such Lender or otherwise, the circumstances entitling the Credit Parties
        to
        require such assignment and delegation cease to apply.
  SECTION
        14.09 Complete
        Agreement; Sale of Interest .
        The
        Loan Documents constitute the complete agreement between the parties with
        respect to the subject matter hereof and thereof, supersede any previous
        agreement or understanding between them relating hereto or thereto and may
        not
        be modified, altered or amended except by an agreement in writing signed
        by the
        Credit Parties and the Lenders in accordance with SECTION
        14.02 .
        The
        Credit Parties may not sell, assign or transfer any of the Loan Documents
        or any
        portion thereof, including their rights, title, interests, remedies, powers
        and
        duties hereunder or thereunder. The Credit Parties hereby consent to any
        Lender’s sale of participations, assignment, transfer or other disposition, at
        any time or times, of any of the Loan Documents or of any portion thereof
        or
        interest therein, including such Lender’s rights, title, interests, remedies,
        powers or duties thereunder, subject, in the case of a participation,
        assignment, transfer or other disposition, to the provisions of SECTION
        14.10 .
  110
  SECTION
        14.10 Assignment;
        Register .
  (a) The
        provisions of this Agreement shall be binding upon and inure to the benefit
        of
        the parties hereto and their respective successors and assigns permitted
        hereby,
        except that no Credit Party may assign or otherwise transfer any of its rights
        or obligations hereunder without the prior written consent of each Lender
        (and
        any attempted assignment or transfer by any Credit Party without such consent
        shall be null and void). Nothing in this Agreement, expressed or implied,
        shall
        be construed to confer upon any Person (other than the parties hereto, their
        respective successors and assigns permitted hereby and, to the extent expressly
        contemplated hereby, the Affiliates of the Administrative Agent) any legal
        or
        equitable right, remedy or claim under or by reason of this
        Agreement.
  (b) Any
        Lender may assign to one or more Eligible Assignees all or a portion of its
        rights and obligations under this Agreement (including all or a portion of
        its
        Loans at the time owing to it); provided  that ,
        (i) except in the case of an assignment of the entire remaining outstanding
        amount of the Loans at the time owing to it (determined as of the date the
        Assignment and Acceptance with respect to such assignment is delivered to
        the
        Administrative Agent) or in the case of an assignment to an entity described
        in
        clause (a), (b) or (c) of the definition of Eligible Assignee, any such
        assignment shall not be less than $1,000,000, unless the Administrative Agent
        otherwise consents (such consent not to be unreasonably withheld or delayed),
        (ii) the consent of the Administrative Agent shall be required for any such
        assignment, (iii) if no Event of Default has occurred and is continuing,
        the
        consent of the Administrative Borrower, such consent not to be unreasonably
        withheld, delayed or conditioned, shall be required for any such assignment,
        and
        (iv) the parties to each assignment shall execute and deliver to the
        Administrative Agent an Assignment and Acceptance and shall pay to the
        Administrative Agent a $3500 assignment fee. Subject to acceptance and recording
        thereof by the Administrative Agent pursuant to paragraph (c) of this SECTION
        14.10 ,
        from
        and after the Closing Date specified in each Assignment and Acceptance, the
        Eligible Assignee thereunder shall be a party hereto and, to the extent of
        the
        interest assigned by such Assignment and Acceptance, have the rights and
        obligations of a Lender under this Agreement, and the assigning Lender
        thereunder shall, to the extent of the interest assigned by such Assignment
        and
        Acceptance, be released from its obligations under this Agreement (and, in
        the
        case of an Assignment and Acceptance covering all of the assigning Lender’s
        rights and obligations under this Agreement, such Lender shall cease to be
        a
        party hereto but shall continue to be entitled to the benefits of SECTION
        3.04 , SECTION
        4.02 , SECTION
        4.03 and SECTION
        14.18 to the
        extent any claim thereunder relates to an event arising or such Lender’s status
        or activity as Lender prior to such assignment.
  (c) Any
        assignment or transfer by a Lender of rights or obligations under this Agreement
        that does not comply with this SECTION
        14.10 shall be
        treated for purposes of this Agreement as a sale by such Lender of a
        participation in such rights and obligations in accordance with
        paragraph (e) of this SECTION
        14.10 .
  111
  (d) The
        Administrative Agent, acting solely for this purpose as an agent of the
        Borrowers, shall maintain at the Administrative Agent’s Office a copy of each
        Assignment and Acceptance delivered to it and a register for the recordation
        of
        the names and addresses of the Lenders, and the Commitment of, and principal
        amount of the Loan owing to, each Lender pursuant to the terms hereof from
        time
        to time (the “ Register ”).
        The
        entries in the Register shall be conclusive, and the Borrowers, the
        Administrative Agent and the Lenders may treat each Person whose name is
        recorded in the Register pursuant to the terms hereof as a Lender hereunder
        for
        all purposes of this Agreement, notwithstanding notice to the contrary. The
        Register shall be available for inspection by any Borrower and any Lender,
        at
        any reasonable time and from time to time upon reasonable prior notice. The
        Borrowers may request in writing a copy of the Register from time to time
        and
        the Administrative Agent will promptly deliver a copy of such Register to
        the
        Administrative Borrower promptly thereafter.
  (e) Any
        Lender may, without the consent of, or notice to, the Administrative Borrower
        or
        the Administrative Agent, sell participations to one or more banks or other
        entities (a “ Participant ”)
        in all
        or a portion of such Lender’s rights and/or obligations under this Agreement
        (including all or a portion of the Loans owing to it); provided  that (i) such Lender’s obligations under this Agreement shall remain unchanged,
        (ii) such Lender shall remain solely responsible to the other parties
        hereto for the performance of such obligations, and (iii) the Borrowers,
        the Agents, the Issuing Bank and the other Lenders shall continue to deal
        solely
        and directly with such Lender in connection with such Lender’s rights and
        obligations under this Agreement. Any agreement or instrument pursuant to
        which
        a Lender sells such a participation shall provide that such Lender shall
        retain
        the sole right to enforce this Agreement and to approve any amendment,
        modification or waiver of any provision of this Agreement, provided that
        such agreement or instrument may provide that such Lender will not, without
        the
        consent of the Participant, agree to any amendment, modification or waiver
        described in SECTION
        14.02(a) that
        affects such Participant. Subject to paragraph (f) of this SECTION
        14.10 the
        Borrowers agree that each Participant shall be entitled to the benefits of SECTION
        3.04 , SECTION
        4.02 and SECTION
        4.03 to the
        same extent as if it were a Lender and had acquired its interest by assignment
        pursuant to paragraph (b) of this SECTION
        14.10 .
        To the
        extent permitted by law, each Participant also shall be entitled to the benefits
        of SECTION
        14.06 as
        though it were a Lender, provided such Participant agrees to be subject to SECTION
        3.03 as
        though it were a Lender.
  (f) A
        Participant shall not be entitled to receive any greater payment under SECTION
        3.04 or ARTICLE
        IV than the
        applicable Lender would have been entitled to receive with respect to the
        participation sold to such Participant, unless the sale of the participation
        to
        such Participant is made with the Administrative Borrower’s prior written
        consent. A Participant shall be subject to SECTION
        14.03 as
        though it were a Lender. A Participant that would be a Non-U.S. Lender if
        it
        were a Lender shall not be entitled to the benefits of SECTION
        3.04 unless
        the Administrative Borrower is notified of the participation sold to such
        Participant and such Participant agrees, for the benefit of the Borrowers,
        to
        comply with SECTION
        3.04 and SECTION
        12.14 as
        though it were a Lender.
  (g) Any
        Lender may, without the consent of the Borrowers or the Administrative Agent,
        at
        any time pledge or assign a security interest in all or any portion of its
        rights under this Agreement to secure obligations of such Lender, including,
        without limitation, (i) any pledge or assignment to secure obligations to a
        Federal Reserve Bank, and (ii) in the case of any Lender that is a Fund,
        any pledge or assignment of all or any portion of such Lender’s rights under
        this Agreement to any holders of obligations owed, or securities issued,
        by such
        Lender as security for such obligations or securities, or to any trustee
        for, or
        any other representative of, such holders, and this SECTION
        14.10(g) shall
        not apply to any such pledge or assignment of a security interest; provided that no
        such pledge or assignment of a security interest shall release a Lender from
        any
        of its obligations hereunder or substitute any such pledgee or assignee for
        such
        Lender as a party hereto.
  112
  SECTION
        14.11 Administrative
        Borrower .
  (a) Each
        Borrower hereby irrevocably appoints JRCC as the borrowing agent and
        attorney-in-fact for all Borrowers (the “ Administrative
        Borrower ”)
        which
        appointment shall remain in full force and effect unless and until Agent
        shall
        have received prior written notice signed by each Borrower that such appointment
        has been revoked and that another Borrower has been appointed Administrative
        Borrower.
  (b) Each
        Borrower hereby irrevocably appoints and authorizes the Administrative Borrower
        (i) to provide the Administrative Agent with all notices with respect to
        Advances and Letters of Credit obtained for the benefit of any Borrower and
        all
        other notices and instructions under this Agreement, and (ii) to take such
        action as the Administrative Borrower deems appropriate on its behalf to
        obtain
        Advances and Letters of Credit under this Agreement, and to exercise such
        other
        powers as are reasonably incidental thereto to carry out the purposes of
        this
        Agreement. It is understood that the handling of the Loan Account and Collateral
        of Borrowers in a combined fashion, as more fully set forth herein, is done
        solely as an accommodation to the Borrowers in order to utilize the collective
        borrowing powers of Borrowers in the most efficient and economical manner
        and at
        their request, and that none of the Administrative Agent, the L/C Issuer
        or any
        Lender shall incur any liability to any Borrower as a result hereof. Each
        Borrower expects to derive benefit, directly or indirectly, from the handling
        of
        the Loan Account and the Collateral in a combined fashion since the successful
        operation of each Borrower is dependent on the continued successful performance
        of the integrated group. To induce the Administrative Agent and the Lenders
        to
        do so, and in consideration thereof, each Borrower hereby jointly and severally
        agrees to indemnify the Administrative Agent, the L/C Issuer and each Lender
        and
        hold each harmless against any and all liability, expense, loss or claim
        of
        damage or injury, made against any of them by any Borrower or by any third
        party
        whosoever, arising from or incurred by reason of (a) the handling of the
        Loan
        Account and Collateral of Borrowers as provided in this SECTION
        14.11 and (b)
        the reliance by the Administrative Agent, the Issuing Bank or any Lender
        on any
        instructions of the Administrative Borrower, except that Borrowers will have
        no
        liability to the relevant Agent-Related Person or Lender-Related Person under
        this SECTION
        14.11 with
        respect to any liability that has been finally determined by a court of
        competent jurisdiction to have resulted solely from the gross negligence
        or
        willful misconduct of such Agent-Related Person or Lender-Related Person,
        as the
        case may be.
  SECTION
        14.12 Counterparts .
        This
        Agreement may be executed in any number of counterparts and by different
        parties
        hereto in separate counterparts, each of which shall be deemed to be an
        original, but all of which taken together shall constitute one and the same
        agreement. Delivery of an executed counterpart of this Agreement or any of
        the
        other Loan Documents by telecopy shall have the same force and effect as
        the
        delivery of an original executed counterpart of this Agreement or any of
        such
        other Loan Documents. Any party delivering an executed counterpart of any
        such
        agreement by telecopy shall also deliver an original executed counterpart,
        but
        the failure to do so shall not affect the validity, enforceability or binding
        effect of such agreement.
  113
  SECTION
        14.13 GOVERNING
        LAW .
        THIS
        AGREEMENT, THE NOTES AND, EXCEPT TO THE EXTENT OTHERWISE PROVIDED THEREIN,
        THE
        OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
        THE
        LAWS OF THE STATE OF NEW YORK.
  SECTION
        14.14 CONSENT
        TO JURISDICTION, SERVICE OF PROCESS AND VENUE .
        ANY
        LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN
        DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK IN THE BOROUGH
        OF
        MANHATTAN, COUNTY OF NEW YORK OR OF THE UNITED STATES DISTRICT COURT FOR
        THE
        SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
        THE CREDIT PARTIES HEREBY IRREVOCABLY ACCEPT IN RESPECT OF ITS PROPERTY,
        GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS.
        THE
        CREDIT PARTIES FURTHER IRREVOCABLY CONSENT TO THE SERVICE OF PROCESS OUT
        OF ANY
        OF THE AFOREMENTIONED COURTS AND IN ANY SUCH ACTION OR PROCEEDING BY THE
        MAILING
        OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE
        CREDIT PARTIES AT THEIR ADDRESS FOR NOTICES SET FORTH IN SECTION
        14.01 ,
        SUCH
        SERVICE TO BECOME EFFECTIVE FIVE (5) DAYS AFTER SUCH MAILING. NOTHING HEREIN
        SHALL AFFECT THE RIGHT OF THE LENDERS OR THE AGENTS TO SERVICE OF PROCESS
        IN ANY
        OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
        PROCEED AGAINST THE CREDIT PARTIES IN ANY OTHER JURISDICTION. THE CREDIT
        PARTIES
        HEREBY EXPRESSLY AND IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY
        LAW,
        ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE JURISDICTION OR LAYING
        OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE
        AND
        ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
        FORUM.
  SECTION
        14.15 WAIVER
        OF JURY TRIAL, ETC. THE
        CREDIT PARTIES, THE LENDERS AND THE AGENTS HEREBY WAIVE ANY RIGHT TO A TRIAL
        BY
        JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER
        THIS
        AGREEMENT, THE NOTES OR OTHER LOAN DOCUMENTS, OR UNDER ANY AMENDMENT, WAIVER,
        CONSENT, INSTRUMENT, DOCUMENT OR OTHER AGREEMENT DELIVERED OR WHICH IN THE
        FUTURE MAY BE DELIVERED IN CONNECTION THEREWITH, OR ARISING FROM ANY FINANCING
        RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREE THAT ANY
        SUCH
        ACTION, PROCEEDING OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT
        BEFORE
        A JURY. THE CREDIT PARTIES CERTIFY THAT NO OFFICER, REPRESENTATIVE, AGENT
        OR
        ATTORNEY OF THE LENDERS OR THE AGENTS HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
        THAT THE LENDERS OR THE AGENTS WOULD NOT, IN THE EVENT OF ANY ACTION, PROCEEDING
        OR COUNTERCLAIM, SEEK TO ENFORCE THE FOREGOING WAIVERS. THE CREDIT PARTIES
        HEREBY ACKNOWLEDGE THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDERS
        AND THE AGENTS ENTERING INTO THIS AGREEMENT.
  114
  SECTION
        14.16 Consent . Except
        as
        otherwise expressly set forth herein or in any other Loan Document to the
        contrary, if the consent, approval, satisfaction, determination, judgment,
        acceptance or similar action (an “ Action ”)
        of the
        Lenders or the Agents, shall be permitted or required pursuant to any provision
        hereof or any provision of any other agreement to which the Borrowers or
        any
        Guarantors are parties and to which the Lenders or the Agents have succeeded
        thereto, such Action shall be required to be in writing and may be withheld
        or
        denied by the Lenders or the Agents with or without any reason in their
        discretion.
  SECTION
        14.17 Interpretation .
        Neither
        this Agreement nor any uncertainty or ambiguity herein shall be construed
        or
        resolved against the Lenders, the Agents or the Borrower, whether under any
        rule
        of construction or otherwise. On the contrary, this Agreement has been reviewed
        by all parties represented by counsel of their choosing and shall be construed
        and interpreted according to the ordinary meaning of the words used so as
        to
        accomplish fairly the purposes and intentions of all parties
        hereto.
  SECTION
        14.18 Reinstatement;
        Certain Payments . If
        any
        claim is ever made upon the Lenders or the Agents for repayment or recovery
        of
        any amount or amounts received by the Lenders or the Agents in payment or
        received on account of any of the Obligations, the Lenders or the Agents
        shall
        give prompt notice of such claim to the Administrative Borrower, and if the
        Lenders or the Agents repay all or part of such amount by reason of (a) any
        judgment, decree or order of any court of competent jurisdiction or
        administrative body having jurisdiction over the Lenders or the Agents or
        any of
        their respective property, or (b) compliance by the Lenders or the Agents
        with any requirement of a Governmental Authority having jurisdiction over
        the
        Lenders or the Agents, then and in such event the Credit Parties agree that
        (i) any such judgment, decree or order shall be binding upon it
        notwithstanding the cancellation of any instrument evidencing the Obligations
        or
        the other Loan Documents or the termination of this Agreement or the other
        Loan
        Documents, and (ii) it shall be and remain liable to the Lenders or the
        Agents hereunder for the amount so repaid or recovered to the same extent
        as if
        such amount had never originally been received by the Lenders or the
        Agents.
  115
  SECTION
        14.19 Indemnification . In
        addition to the Credit Parties’ other Obligations under this Agreement, the
        Credit Parties agree to defend, protect, indemnify and hold harmless the
        Lenders
        and each of their respective Affiliates and their officers, directors, trustees,
        employees, agents and advisors, the Administrative Agent, the Collateral
        Agent,
        the Agent-Related Persons and the Lender-Related Persons (collectively called
        the “ Indemnitees ”)
        from
        and against any and all claims, losses, demands, settlements, damages,
        liabilities, obligations, penalties, fines, fees, reasonable costs and expenses
        (including, without limitation, reasonable attorneys’ fees, costs and expenses,
        but excluding income, franchise and similar taxes of an Indemnitee) incurred
        by
        such Indemnitees (but not taxes, which shall be governed by SECTION
        3.04 ),
        whether prior to or from and after the Closing Date, as a result of or arising
        from or relating to or in connection with any of the following: (a) the
        Administrative Agent, the Collateral Agent or the Lenders furnishing of funds
        to
        the Credit Parties under this Agreement, including, without limitation, the
        management of any such Loans, (b) any matter relating to the financing
        transactions contemplated by this Agreement or the other Loan Documents or
        by
        any document executed in connection with the transactions contemplated by
        this
        Agreement or the other Loan Documents, (c) any claim, litigation,
        investigation or administrative or judicial proceeding in connection with
        any
        transaction contemplated in, or consummated under, the Loan Documents, or
        (d) any claim, litigation, investigation or proceeding relating to any of
        the foregoing, whether or not any Indemnitee is a party thereto, including,
        without limitation, claims, litigations, investigations or other proceedings
        arising out of (i) the presence, disposal, Release of any Hazardous
        Materials on, in, at, to, from or under any property at any time owned or
        occupied by the Credit Parties (or any of their respective predecessors in
        interest or title) or at any facility which received Hazardous Materials
        generated by the Credit Parties or any of their respective predecessors in
        interest in connection with the receipt of such Hazardous Materials,
        (ii) any personal injury (including wrongful death) or property damage
        (real or personal) arising out of or related to any Hazardous Materials
        generated by the Credit Parties, (iii) any investigation, lawsuit brought
        or threatened, settlement reached or government order relating to such Hazardous
        Materials, (iv) any violation of any Environmental Law by the Credit
        Parties or any of their respective predecessors in interest, and/or (v) any
        Environmental Action (collectively, the “ Indemnified
        Matters ”); provided , however ,
        that
        the Credit Parties shall not have any obligations to any Indemnitee under
        this SECTION
        14.19 for any
        Indemnified Matter to the extent resulting from the gross negligence or willful
        misconduct of such Indemnitee; provided , however ,
        that no
        Credit Party shall be required to reimburse the legal fees and expenses of
        more
        than one outside counsel (in addition to up to one local counsel in each
        applicable local jurisdiction) for all Indemnitees under this SECTION
        14.19 unless
        on advice of outside counsel, representation of all such Indemnitees would
        be
        inappropriate due to the existence of an actual or potential conflict of
        interest. Such indemnification for all of the foregoing losses, damages,
        fees,
        costs and expenses of the Indemnitees shall be due and payable promptly after
        demand therefor. To the extent that the undertaking to indemnify, pay and
        hold
        harmless set forth in this SECTION
        14.19 may be
        unenforceable because it is violative of any law or public policy, the Credit
        Parties shall contribute the maximum portion which it is permitted to pay
        and
        satisfy under Applicable Law, to the payment and satisfaction of all Indemnified
        Matters incurred by the Indemnitees. This Indemnity shall survive the repayment
        of the Obligations and the discharge of the Liens granted under the Loan
        Documents.
  SECTION
        14.20 Records .
        The
        unpaid principal of, and interest on, the Obligations, the interest rate
        or
        rates applicable to such unpaid principal and interest, the duration of such
        applicability, the Commitment, and the accrued and unpaid fees payable pursuant
        to SECTION
        4.04 ,
        shall
        at all times be ascertained from the records of the Lender and Agents, which
        shall be conclusive and binding absent manifest or demonstrable
        error.
  SECTION
        14.21 Binding
        Effect .
        This
        Agreement shall be binding upon and inure to the benefit of the Borrower,
        the
        Lenders and the Agents, and their respective successors and assigns, subject
        to SECTION
        14.10 .
  116
  SECTION
        14.22 Confidentiality . The
        Lenders, the Administrative Agent and the Collateral Agent each agree (on
        behalf
        of itself and each of its Affiliates, directors, officers, employees and
        representatives) (each, a “ Recipient ”)
        to
        hold in confidence and not disclose, in accordance with its customary procedures
        for handling confidential information of this nature and in accordance with
        safe
        and sound practices of comparable commercial finance companies, any non-public
        information supplied to it by the Credit Parties pursuant to this Agreement
        or
        the other Loan Documents (and which at the time is not, and does not thereafter
        become, publicly available or available to such Person from another source
        not
        known to be subject to a confidentiality obligation to such Person not to
        disclose such information), or available to such Person from another source
        not
        known to be subject to a confidentiality obligation to such Person not to
        disclose such information, provided that
        nothing herein shall limit the disclosure of any such information (a) to
        the extent required by Applicable Law or other statute, rule, regulation
        or
        judicial process, (b) to any Lender, any Agent, or to employees of or
        counsel, accountants, auditors and other advisors for any of the foregoing,
        (it
        being understood that the persons to whom such disclosure is made will be
        informed of the confidential nature of such information and instructed to
        keep
        such information confidential pursuant to the terms hereof), (c) to any
        actual or prospective counterparty (or its advisors) to any swap or derivative
        transaction relating to the Borrowers or any of their Subsidiaries and their
        obligations so long as such counterparty or prospective counterparty first
        agrees in writing to the confidentiality provisions of this SECTION
        14.22 ,
        (d) to third-party examiners, auditors, accountants, regulators or members
        of any self-regulatory organization for any Agent or Lender who are advised
        of
        the confidential nature of such information, (e) to the extent required by
        any
        court, governmental or administrative agency, pursuant to any subpoena or
        other
        legal process, or by any law, statute, regulation or court order, or in
        connection with any litigation to which any of the Agents or the Lenders
        are
        party, to cooperate, at the Borrower’s sole cost and expense, with any
        protective order sought by the Borrower, (f) to any assignee or participant
        (or prospective assignee or participant) and to any potential successor Agent
        so
        long as such assignee or participant (or prospective assignee or participant)
        or
        potential successor Agent first agrees in writing to the confidentiality
        provisions of this SECTION
        14.22 ,
        (g) to any Person that is an investor or prospective investor in a
        securitization that agrees that its access to information regarding the Credit
        Parties and the Loans is solely for purposes of evaluating an investment
        in such
        securitization, or (h) to a Person that is a trustee, collateral manager,
        servicer, noteholder, rating agency or secured party in a securitization
        in
        connection with the administration, servicing and reporting on the assets
        serving as collateral for such securitization.
  SECTION
        14.23 Lender
        Advertising . The
        Agents and the Lenders shall be entitled to advertise the closing of the
        transactions contemplated by this Agreement in such trade publications, business
        journals, newspapers of general circulation and otherwise, as the Agents
        and the
        Lenders shall deem appropriate, including, without limitation, the publication
        of a tombstone announcing the closing of this transaction.
  SECTION
        14.24 Press
        Releases .
        The
        Credit Parties will not issue press releases describing this Agreement or
        the
        transactions represented hereby or conducted hereunder without the prior
        written
        consent of the Administrative Agent.
  117
  SECTION
        14.25 Common
        Enterprise .
        The
        successful operation and condition of the Borrowers is dependent on the
        continued successful performance of the functions of the group of the Credit
        Parties as a whole and the successful operation of each Borrower is dependent
        on
        the successful performance and operation of each other Credit Party. Each
        Credit
        Party expects to derive benefit (and its board of directors or other governing
        body has determined that it may reasonably be expected to derive benefit),
        directly and indirectly, from (a) successful operations of each of the
        other Credit Parties, and (b) the credit extended by the Lenders to the
        Borrowers hereunder, both in their separate capacities and as members of
        the
        group of companies. Each Credit Party has determined that execution, delivery
        and performance of this Agreement and any other Loan Documents to be executed
        by
        such Credit Party is within its purpose, will be of direct and indirect benefit
        to such Credit Party, and is in its best interest.
  SECTION
        14.26 USA
        Patriot Act .
        Each
        Lender that is subject to the requirements of the Patriot Act hereby notifies
        the Borrowers and each other Credit Party that pursuant to the requirements
        of
        the Patriot Act, it is required to obtain, verify and record information
        that
        identifies each Credit Party, which information includes the name and address
        of
        the Credit Party and other information that will allow such Lender to identify
        each Credit Party in accordance with the Patriot Act.
  [ *Signature
        Page Follows* ]
  118


IN
        WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
        by
        their respective officers thereunto duly authorized, as of the date first
        above
        written.


BORROWERS:JAMES
                RIVER COAL COMPANYBy:Name:Title:




JAMES
                RIVER COAL SERVICE COMPANYBy:Name:Title:




LEECO,
                INC.By:Name:Title:




TRIAD
                MINING, INC.By:Name:Title:




TRIAD
                UNDERGROUND MINING, LLCBy:Name:Title:




Signature
      Page to Revolving Credit
      Agreement









BLEDSOE
                COAL CORPORATIONBy:Name:Title:




JOHNS
                CREEK ELKHORN COAL CORPORATIONBy:Name:Title:




BELL
                COUNTY COAL CORPORATIONBy:Name:Title:




JAMES
                RIVER COAL SALES, INC.By:Name:Title:




BLEDSOE
                COAL LEASING COMPANYBy:Name:Title:


Signature
      Page to Revolving Credit
      Agreement









BLUE
                DIAMOND COAL COMPANYBy:Name:Title:




MCCOY
                ELKHORN COAL CORPORATIONBy:Name:Title:


GUARANTORS:BDCC
                HOLDING COMPANY, INC.By:Name:Title:





EOLIA
                RESOURCES, INC.By:Name:Title:




SHAMROCK
                COAL COMPANY, INCORPORATEDBy:Name:Title:




Signature
        Page to Revolving Credit Agreement









JOHNS
                CREEK COAL COMPANYBy:Name:Title:




JOHNS
                CREEK PROCESSING COMPANYBy:Name:Title:




Signature
      Page to Revolving Credit
      Agreement









ADMINISTRATIVE
                AGENT:GENERAL
                ELECTRIC CAPITAL CORPORATIONBy:Name:Title:




LENDER:GENERAL
                ELECTRIC CAPITAL CORPORATIONBy:Name:Title:




Signature
      Page to Revolving Credit
      Agreement







ANNEX
        A
  to
  **CREDIT
        AGREEMENT**
  **LETTERS
        OF CREDIT**
  (a) Issuance .
        Subject
        to the terms and conditions of the Agreement, the Administrative Agent and
        the
        Lenders agree to arrange for and cause to be issued, from time to time prior
        to
        the Maturity Date, upon the request of Administrative Borrower, on behalf
        of the
        Borrowers and for the Borrowers’ account, Letters of Credit to be issued by the
        L/C Issuer. Each Lender shall, subject to the terms and conditions hereinafter
        set forth, purchase (or be deemed to have purchased) risk participations
        in all
        such Letters of Credit issued with the written consent of the Administrative
        Agent, as more fully described in paragraph (b)(ii) below. The aggregate
        amount
        of all such Letter of Credit Usage shall not at any time exceed the least
        of (i)
        Ten Million Dollars ($10,000,000) (the “ L/C
        Sublimit ”),
        (ii) the Maximum Amount less the outstanding Revolving Advances at such
        time, or (iii) the Borrowing Base less the outstanding Revolving Advances
        at such time. No Letter of Credit shall have an expiry date that is more
        than
        one year following the date of issuance thereof, unless otherwise determined
        by
        the Administrative Agent and L/C Issuer, in their respective sole
        discretion (including with respect to customary evergreen provisions), and
        neither the Administrative Agent nor the Lenders shall be under any obligation
        to arrange for, provide or purchase risk participations in, any Letter of
        Credit
        having an expiry date that is later than the Maturity Date.
  (b) Advances
        Automatic; Participations .
        In the
        event that the L/C Issuer makes or is required to make any payment on or
        pursuant to any Letter of Credit, (1) it shall promptly notify the
        Administrative Agent and the Administrative Borrower thereof, (2) Administrative
        Agent shall pay the L/C Issuer the amount of such payment within one Business
        Day after receipt of such notice, (3) such payment shall be deemed to be
        a
        Revolving Advance to the Borrowers under SECTION
        2.01(a) of the
        Agreement, regardless of whether a Default or Event of Default has occurred
        and
        is continuing and notwithstanding any failure to satisfy the conditions
        precedent set forth in ARTICLE
        V ,
        and
        each Lender shall be obligated to pay its Pro Rata Share thereof to the
        Administrative Agent in accordance with the Agreement. The failure of any
        Lender
        to make available to the Administrative Agent for the Administrative Agent’s own
        account its Pro Rata Share of any such Revolving Advance or payment by the
        Administrative Agent to the L/C Issuer shall not relieve any other Lender
        of its
        obligation hereunder to make available to the Administrative Agent its Pro
        Rata
        Share thereof, but no Lender shall be responsible for the failure of any
        other
        Lender to make available such other Lender’s Pro Rata Share of any such
        payment.
  (i) If
        Borrowers would not be able to incur Revolving Advances as contemplated by
        paragraph (b)(i) above at the time of any such payment on or pursuant to
        a
        Letter of Credit because of an Event of Default described in SECTIONS
        8.1(h) or (i) or
        otherwise or if it shall be illegal or unlawful for any Lender to be deemed
        to
        have assumed a ratable share of the reimbursement obligations owed to the
        L/C
        Issuer, then (A) immediately and without further action whatsoever, each
        Lender
        shall be deemed to have irrevocably and unconditionally purchased from the
        L/C
        Issuer an undivided interest and participation equal to such Lender’s Pro Rata
        Share (based on its Commitment) of the aggregate Letter of Credit Usage and
        (B)
        thereafter, immediately upon issuance of any Letter of Credit, each Lender
        shall
        be deemed to have irrevocably and unconditionally purchased from the L/C
        Issuer)
        an undivided interest and participation in the Letter of Credit Usage with
        respect to such Letter of Credit in an amount equal to such Lender’s Pro Rata
        Share (based on its Commitment) thereof. Each Lender shall fund its
        participation in all payments or disbursements made under the Letters of
        Credit
        to the Administrative Agent in the same manner as provided in the Agreement
        with
        respect to Revolving Advances, and the Administrative Agent shall reimburse
        the
        L/C Issuer for such payment and disbursements as set forth in clause (i)
        above.
  A-1
  (ii) The
        obligations of Lenders under clauses (i) and (ii) above shall be for the
        benefit
        of the Administrative Agent and the L/C Issuer and may be enforced by the
        L/C
        Issuer.
  (c) Cash
        Collateral.
  (i) If
        Borrowers are required to provide cash collateral for all or any portion
        of the
        aggregate Letter of Credit Usage pursuant to the Agreement, including after
        the
        occurrence of an Event of Default, the Borrowers will pay to the Administrative
        Agent for the ratable benefit of itself and the Lenders cash or cash equivalents
        acceptable to the Administrative Agent (“ Cash
        Collateral ”)
        in an
        amount equal to 105% of the amount of the aggregate Letter of Credit Usage.
        Such
        Cash Collateral shall be held by the Administrative Agent and pledged to,
        and
        subject to the control of, the Administrative Agent, for the benefit of the
        Administrative Agent, the Lenders and the L/C Issuer. The Borrowers hereby
        pledge and grant to the Administrative Agent, on behalf of itself and the
        Lenders, a security interest in all such Cash Collateral and all proceeds
        thereof, as security for the payment of all amounts due in respect of the
        Letter
        of Credit Usage and other Obligations, whether or not then due. The Agreement,
        including this Annex
        A ,
        shall
        constitute a security agreement under applicable law.
  (ii) If
        any
        Letters of Credit shall for any reason be outstanding on the Maturity Date,
        the
        Borrowers shall do one or more of the following with respect to each such
        outstanding Letter of Credit (A) provide Cash Collateral therefor in the
        manner
        described above, (B) cause such Letter of Credit and all guaranties thereof,
        if
        any, to be canceled and returned to each L/C Issuer, or (C) deliver to the
        L/C
        Issuer a stand-by letter (or letters) of credit (each, a “ Backstop
        Letter of Credit ”)
        in
        guaranty of each outstanding Letter of Credit, which Backstop Letter of Credit
        meets all of the following requirements: (x) each Backstop Letter of Credit
        shall have an expiry or termination date that is at least thirty (30) additional
        days later than the expiry or termination date of the corresponding Letter
        of
        Credit with respect to which the Backstop Letter of Credit is issued, (y)
        each
        Backstop Letter of Credit shall be in an amount equal to 105% of the maximum
        amount then available to be drawn under the outstanding Letter of Credit
        with
        respect to which the Backstop Letter of Credit is issued, (z) and each Backstop
        Letter of Credit shall be issued by a Person, and shall be subject to such
        terms
        and conditions, as are satisfactory to the Administrative Agent and the L/C
        Issuer in their respective sole discretion.
  A-2
  (iii) From
        time
        to time after funds are deposited as Cash Collateral by any Borrower, whether
        before or after the Maturity Date, the Administrative Agent may apply such
        funds
        then held by it to the payment of any amounts, and in such order as the
        Administrative Agent may elect, as shall be or shall become due and payable
        by
        the Borrowers to the Administrative Agent and the Lenders with respect to
        the
        Letter of Credit Usage and, upon the repayment or expiration of all amounts
        constituting Term Letter of Credit Usage, to any other Obligations of the
        Borrowers then due and payable.
  (iv) No
        Borrower nor any Person claiming on behalf of or through any Borrower shall
        have
        any right to withdraw any of the Cash Collateral, except that upon the
        termination or expiry of all Term Letters of Credit and the payment of all
        amounts payable by the Borrowers to the Administrative Agent and the Lenders
        in
        respect thereof, any remaining Cash Collateral shall be applied to other
        Obligations then due and owing and upon payment in full of such Obligations,
        any
        remaining amount shall be paid to the Borrowers or as otherwise required
        by law.
        Interest earned on Cash Collateral shall be held as additional
        collateral.
  (d) Fees
        and Expenses .
        Borrowers agree to pay to the Administrative Agent for the benefit of Lenders,
        as compensation to such Lenders for the Letter of Credit Usage hereunder,
        (i)
        all costs and expenses incurred by the Administrative Agent or any Lender
        on
        account of such Letter of Credit, and (ii) the L/C Fee specified in SECTION
        4.04 of the
        Agreement. Such fee shall be paid to the Administrative Agent for the benefit
        of
        the Lenders in arrears, on the first day of each month and on the Maturity
        Date.
        In addition, the Borrowers shall pay to the L/C Issuer, on demand and for
        its
        own account, a fronting fee equal to 0.25% of the maximum amount available
        to be
        drawn under each Letter of Credit (or such higher amount as may be required
        by
        the L/C Issuer) plus such
        fees (including all per annum fees), charges and expenses of the L/C Issuer
        in
        respect of the issuance, negotiation, acceptance, amendment, transfer and
        payment of such Letter of Credit or otherwise payable pursuant to the
        application and related documentation under which such Term Letter of Credit
        is
        issued.
  (e) Request
        for Incurrence of Term Letter of Credit Usage .
        The
        Administrative Borrower shall give the Administrative Agent at least two
        (2)
        Business Days’ prior written notice requesting the issuance of any Letter of
        Credit. The notice shall be accompanied by the form of the Letter of Credit
        (which shall be acceptable to the L/C Issuer) and a completed Application
        for
        Standby Letter of Credit or Application and Agreement for Documentary Letter
        of
        Credit (as applicable) in the form of [ Exhibit
        B-1 or B-2] attached
        hereto. Notwithstanding anything contained herein to the contrary, Letter
        of
        Credit applications by the Administrative Borrower and approvals by the
        Administrative Agent and the L/C Issuer may be made and transmitted pursuant
        to
        electronic codes and security measures mutually agreed upon and established
        by
        and among the Administrative Borrower, the Administrative Agent and the L/C
        Issuer.
  (f) Obligation
        Absolute .
        The
        obligation of the Borrowers to reimburse the Administrative Agent and the
        Lenders for payments made by any L/C Issuer with respect to any Letter of
        Credit
        Usage shall be absolute, unconditional and irrevocable, without necessity
        of
        presentment, demand, protest or other formalities, and the obligations of
        each
        Lender to make payments to the Administrative Agent with respect to Letters
        of
        Credit shall be unconditional and irrevocable. Such obligations of Borrowers
        and
        Lenders shall be paid strictly in accordance with the terms hereof under
        all
        circumstances including the following:
  A-3
  (i) any
        lack
        of validity or enforceability of any Letter of Credit, any application or
        agreement with the L/C Issuer, the Agreement or the other Loan Documents
        or any
        other agreement;
  (ii) the
        existence of any claim, set-off, defense or other right that any Borrower
        or any
        of their respective Affiliates or any Lender may at any time have against
        a
        beneficiary or any transferee of any Letter of Credit (or any Persons or
        entities for whom any such transferee may be acting), the Administrative
        Agent,
        any Lender, or any other Person, whether in connection with the Agreement,
        the
        Letter of Credit, the transactions contemplated herein or therein or any
        unrelated transaction (including any underlying transaction between any Borrower
        or any of their respective Affiliates and the beneficiary for which the Letter
        of Credit was procured);
  (iii) any
        draft, demand, certificate or any other document presented under any Letter
        of
        Credit proving to be forged, fraudulent, invalid or insufficient in any respect
        or any statement therein being untrue or inaccurate in any respect;
  (iv) payment
        by the Administrative Agent (except as otherwise expressly provided in paragraph
        (g)(ii)(C) below) or the L/C Issuer under any Letter of Credit or guaranty
        thereof against presentation of a demand, draft or certificate or other document
        that does not comply with the terms of such Letter of Credit or such
        guaranty;
  (v) any
        other
        circumstance or event whatsoever, that is similar to any of the foregoing;
        or
  (vi) the
        fact
        that a Default or an Event of Default has **** occurred
        and is continuing.
  (g) Indemnification;
        Nature of Lenders’ Duties.
  (i) In
        addition to amounts payable as elsewhere provided in the Agreement, Borrowers
        hereby agree to pay and to protect, indemnify, and save harmless the
        Administrative Agent and each Lender from and against any and all claims,
        demands, liabilities, damages, losses, costs, charges and expenses (including
        reasonable attorneys’ fees and allocated costs of internal counsel) that the
        Administrative Agent or any Lender may incur or be subject to as a consequence,
        direct or indirect, of (A) the issuance of any Letter of Credit or guaranty
        thereof, or (B) the failure of the Administrative Agent or any Lender seeking
        indemnification or of the L/C Issuer to honor a demand for payment under
        any
        Letter of Credit or guaranty thereof as a result of any act or omission,
        whether
        rightful or wrongful, of any present or future de jure or de facto government
        or
        Governmental Authority, in each case other than to the extent solely as a
        result
        of the gross negligence or willful misconduct of such indemnified person
        (as
        finally determined by a court of competent jurisdiction).
  A-4
  (ii) As
        between the Administrative Agent and any Lender on the one hand and, on the
        other hand, the Borrowers, the Borrowers assume all risks of the acts and
        omissions of, or misuse of any Letter of Credit by, beneficiaries of any
        Letter
        of Credit. In furtherance and not in limitation of the foregoing, to the
        fullest
        extent permitted by law, neither the Administrative Agent nor any Lender
        shall
        be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness
        or legal effect of any document issued by any party in connection with the
        application for and issuance of any Letter of Credit, even if it should in
        fact
        prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent
        or forged, (B) the validity or sufficiency of any instrument transferring
        or
        assigning or purporting to transfer or assign any Letter of Credit or the
        rights
        or benefits thereunder or proceeds thereof, in whole or in part, that may
        prove
        to be invalid or ineffective for any reason, (C) failure of the beneficiary
        of
        any Letter of Credit to comply fully with conditions required in order to
        demand
        payment under such Letter of Credit; provided ,
        that in
        the case of any payment by the Administrative Agent under any Letter of Credit
        or guaranty thereof, the Administrative Agent shall be liable to the extent
        such
        payment was made solely as a result of its gross negligence or willful
        misconduct (as finally determined by a court of competent jurisdiction) in
        determining that the demand for payment under such Letter of Credit or guaranty
        thereof complies on its face with any applicable requirements for a demand
        for
        payment under such Letter of Credit or guaranty thereof, (D) errors, omissions,
        interruptions or delays in transmission or delivery of any messages, by mail,
        cable, telegraph, telex or otherwise, whether or not they may be in cipher,
        (E)
        errors in interpretation of technical terms, (F) any loss or delay in the
        transmission or otherwise of any document required in order to make a payment
        under any Letter of Credit or guaranty thereof or of the proceeds thereof,
        (G)
        the credit of the proceeds of any drawing under any Letter of Credit or guaranty
        thereof, and (H) any consequences arising from causes beyond the control
        of the
        Administrative Agent or any Lender. None of the above shall affect, impair,
        or
        prevent the vesting of any of the Administrative Agent’s or any Lender’s rights
        or powers hereunder or under the Agreement.
  (iii) Nothing
        contained herein shall be deemed to limit or to expand any waivers, covenants
        or
        indemnities made by Borrowers in favor of the L/C Issuer in any letter of
        credit
        application, reimbursement agreement or similar document, instrument or
        agreement between or among Borrowers and the L/C Issuer, including an
        Application and Agreement For Documentary Letter of Credit or a Master Standby
        Agreement entered into with L/C Issuer.
  (h) Letter
        of Credit Amounts .
        Unless
        otherwise specified herein, the amount of a Letter of Credit at any time
        shall
        be deemed to be the stated amount of such Letter of Credit as in effect at
        such
        time; provided , however ,
        that
        with respect to any Letter of Credit that, by its terms or the terms of any
        document issued in connection with such Letter of Credit, provides for one
        or
        more automatic increases in the stated amount thereof, the amount of such
        Letter
        of Credit shall be deemed to be the maximum stated amount of such Letter
        of
        Credit after giving effect to all such increases, whether or not such maximum
        stated amount is in effect at such time.
  A-5
  ANNEX
        B
        (Section 7.01 (H))
  to
  **REVOLVING
        CREDIT AGREEMENT**
  **COLLATERAL
        REPORTS**
  Borrowers
        shall deliver or cause to be delivered the following:
  a. To
        the
        Agents, upon their request, and in any event no less frequently than
        12:00 p.m. (New York time) five (5) business days after the end of each
        fiscal month (together with a copy of all or any part of the following reports
        requested by any Lender in writing after the Closing Date), each of the
        following reports, each of which shall be prepared by the Borrowers as of
        the
        last day of the immediately preceding fiscal month or the date two (2) days
        prior to the date of any such request:
  (i) a
        Borrowing Base Certificate and collateral reports with respect to the Credit
        Parties, including all additions and reductions (cash and non-cash) with
        respect
        to Accounts of each Credit Party, in each case accompanied by such supporting
        detail and documentation as shall be requested by the Collateral Agent in
        its
        reasonable discretion;
  (ii) with
        respect to each Credit Party, a summary of Inventory by location and type
        with a
        supporting Inventory report, in each case accompanied by such supporting
        detail
        and documentation as shall be requested by either Agent in its reasonable
        discretion; and
  (iii) with
        respect to each Credit Party, a monthly trial balance showing Accounts
        outstanding aged from invoice date as follows: 1 to 30 days, 31 to 60 days,
        61
        to 90 days and 91 days or more, accompanied by such supporting detail and
        documentation as shall be requested by Agent in its reasonable
        discretion.
  Notwithstanding
        the foregoing, in the event that at any time Availability shall be less than
        $15,000,000, each of the items described in clause (ii) above shall be delivered
        no less frequently than on each Wednesday of each week, and shall be prepared
        by
        the Borrowers as of the last day of the immediately preceding week.
 
 b. To
        the
        Agents, at the time of delivery of each of the monthly financial statements
        delivered pursuant to Article VII:
  (i) a
        reconciliation of the Accounts trial balance of each Credit Party to such
        Credit
        Party’s most recent Borrowing Base Certificate, general ledger and monthly
        financial statements delivered pursuant to Article VII, in each case accompanied
        by such supporting detail and documentation as shall be requested by either
        Agent in its reasonable discretion;
  (ii) a
        reconciliation of the inventory by location of each Credit Party to such
        Credit
        Party’s most recent Borrowing Base Certificate, general ledger and monthly
        financial statements delivered pursuant to Article VII, in each case accompanied
        by such supporting detail and documentation as shall be requested by either
        Agent in its reasonable discretion;
  B-1
  (iii) an
        aging
        of accounts payable and a reconciliation of that accounts payable aging to
        each
        Credit Party’s general ledger and monthly financial statements delivered
        pursuant to Article VII, in each case accompanied by such supporting detail
        and
        documentation as shall be requested by either Agent in its reasonable
        discretion;
  (iv) a
        reconciliation of the outstanding Loans as set forth in the monthly Loan
        Account
        statement provided by the Administrative Agent to each Credit Party’s general
        ledger and monthly financial statements delivered pursuant to Article VII,
        in
        each case accompanied by such supporting detail and documentation as shall
        be
        requested by either Agent in its reasonable discretion;
  c. To
        the
        Agents, at the time of delivery of each of the quarterly or annual financial
        statements delivered pursuant to Article VII, a listing of government contracts
        of each Credit Party subject to the Federal Assignment of Claims Act of
        1940.
  d. The
        Borrowers, at their own expense, shall deliver to the Agents the results
        of each
        physical verification, if any, that any Borrower or any of their Subsidiaries
        may in their discretion have made, or caused any other Person to have made
        on
        their behalf, of all or any portion of their Inventory (and, if a Default
        or an
        Event of Default has occurred and is continuing, the Borrowers shall, upon
        the
        request of either Agent, conduct, and deliver the results of, such physical
        verifications as the Agents may require);
  e. Such
        other reports, statements and reconciliations with respect to the Borrowing
        Base, Collateral or Obligations of any or all Credit Parties as the Collateral
        Agent shall from time to time request in its reasonable discretion.
  B-2
  **EXHIBIT
        A-1**
 **TO
        REVOLVING CREDIT AGREEMENT**
  DEPOSIT
        ACCOUNT OF ADMINISTRATIVE AGENT
  
  FOR
        REVOLVER COLLATERAL AGENT :
  Bank:
        Deutsche Bank Trust Company Americas
 Account
        Name: GECC CFS CIF Collection Account
 ABA
        Number: 021-001-033
 Acct
        Number: 50-279-513
 Reference:
        CFN8712/JAMES RIVER COAL
  BORROWER
        FUNDING ACCOUNT :
  Wachovia
        Bank, N.A
 ABA
        #:  051400549
 Account
        #:  2000010101379
 Account
        Name: James River Coal Company
  A-1-1


**EXHIBIT
        A-2**
 **TO
        REVOLVING CREDIT AGREEMENT**
  [FORM
        OF]
        ASSIGNMENT AND ACCEPTANCE
  This
        Assignment and Acceptance (the “ Assignment ”)
        is
        dated as of the Effective Date set forth below and is entered into by and
        between [ *Insert
        name of Assignor* ]
        (the
“ Assignor ”)
        and
        [ *Insert
        name of Assignee* ]
        (the
“ Assignee ”).
        Capitalized terms used but not defined herein shall have the meanings given
        to
        them in the Credit Agreement (as defined below), receipt of a copy of which
        is
        hereby acknowledged by the Assignee. The Standard Terms and Conditions set
        forth
        in Annex A-1 attached hereto are hereby agreed to and incorporated herein
        by
        reference and made a part of this Assignment as if set forth herein in
        full.
  For
        an
        agreed consideration, the Assignor hereby irrevocably sells and assigns to
        the
        Assignee, and the Assignee hereby irrevocably purchases and assumes from
        the
        Assignor, subject to and in accordance with the Standard Terms and Conditions
        and the Credit Agreement, as of the Effective Date inserted by the
        Administrative Agent as contemplated below, the interest in and to all of
        the
        Assignor’s rights and obligations under the Credit Agreement and any other
        documents or instruments delivered pursuant thereto that represent the amount
        and percentage interest identified below of all of the Assignor’s outstanding
        rights and obligations under the respective facilities identified below
        (including, to the extent included in any such facilities, Letters of Credit)
        (the “ Assigned
        Interest ”).
        Such
        sale and assignment is without recourse to the Assignor and, except as expressly
        provided in this Assignment and the Credit Agreement, without representation
        or
        warranty by the Assignor.
  1.Assignor:
              
              ______________________2.Assignee:
              
              ______________________3.Borrowers:
              
              James
                  River Coal Company and _______________4.Administrative
                  Agent:
              
              General
                  Electric Capital Corporation, as Administrative Agent under the
                  Credit
                  Agreement5.Credit
                  Agreement:
              
              The
                  Revolving Credit Agreement, dated as of February 26, 2007 (as it
                  may be
                  amended, supplemented or otherwise modified, the “Credit
                  Agreement”;
                  the terms defined therein and not otherwise defined herein being
                  used
                  herein as therein defined), by and among**JAMES
                  RIVER COAL COMPANY**and
                  certain of its Subsidiaries****identified****as
                  borrowers on the signature pages thereto****(collectively,
                  the “Borrowers”),
                  and certain other Credit Parties party thereto from time to time,
                  as
                  Guarantors, the Lenders party thereto from time to time,**GENERAL
                  ELECTRIC CAPITAL CORPORATION**,
                  as Administrative Agent, Collateral Agent and co-lead arranger
                  with**MORGAN
                  STANLEY SENIOR FUNDING, INC.**,
                  acting as co-lead arranger.
  A-1-2
  6.Assigned
                  Interest:
  Facility
                    
                    Percentage
                        Assigned[1]
                    
                    Aggregate
                        Amount of
                      Commitment/Loans
                      for
                        all Lenders
                    
                    Amount
                        of Commitment/Loans
                      Assigned
                    
                    Percentage
                        Assigned of Commitment/Loans [1]____________
                    
                    ____________
                    
                    $______________
                    
                    $______________
                    
                    ____________%
 Effective
                Date: ______________, 20__ [TO BE INSERTED BY ADMINISTRATIVE
                AGENT AND
                WHICH
                SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
                THEREFOR.]
  7. Notice
        and Wire Instructions:
  **[NAME
                  OF ASSIGNOR]**
                
                Notices:
                _________________________
                _________________________
                _________________________
                Attention:
                Telecopy:
                
                with
                  a copy to:
                _________________________
                _________________________
                _________________________
                Attention:
                Telecopy:
                
                Wire
                  Instructions:
              
              **[NAME
                  OF ASSIGNEE]**
                
                Notices:
                _________________________
                _________________________
                _________________________
                Attention:
                Telecopy:
                
                with
                  a copy to:
                _________________________
                _________________________
                _________________________
                Attention:
                Telecopy:
                
                Wire
                  Instructions:
 
 The
        terms
        set forth in this Assignment are hereby agreed to:
  ASSIGNOR
 [NAME
        OF
        ASSIGNOR]
 
  
 [1]
              Set
                  forth, to at least 9 decimals, as a percentage of the Commitment/Loans
                  of
                  all Lenders thereunder.




A-2-2





By:Title :ASSIGNEE
              [NAME
                OF ASSIGNEE]




By:Title:




Consented
      to and Accepted:




**GENERAL
      ELECTRIC CAPITAL CORPORATION** ,
      as


Administrative
      Agent


By:Title:




A-2-3





**ANNEX
      A-1**




STANDARD
      TERMS AND CONDITIONS FOR


ASSIGNMENT
      AND ACCEPTANCE




Representations
      and Warranties .




1.1
            Assignor.
                The Assignor (a) represents and warrants that (i) it is the legal
                and
                beneficial owner of the Assigned Interest, (ii) the Assigned Interest
                is
                free and clear of any lien, encumbrance or other adverse claim and
                (iii)
                it has full power and authority, and has taken all action necessary,
                to
                execute and deliver this Assignment and to consummate the transactions
                contemplated hereby; and (b) assumes no responsibility with respect
                to
                (i) any statements, warranties or representations made in or in
                connection with any Loan Document, (ii) the execution, legality,
                validity,
                enforceability, genuineness, sufficiency or value of the Credit Agreement
                or any other instrument or document delivered pursuant thereto, other
                than
                this Assignment (herein collectively the “Credit
                Documents”),
                or any collateral thereunder, (iii) the financial condition of the
                Borrowers, any of their respective Subsidiaries or Affiliates or
                any other
                Person obligated in respect of any Credit Document or (iv) the performance
                or observance by the Borrowers, any of their respective Subsidiaries
                or
                Affiliates or any other Person of any of their respective obligations
                under any Credit Document.




1.2
            Assignee.
                The Assignee (a) represents and warrants that (i) it has full power
                and
                authority, and has taken all action necessary, to execute and deliver
                this
                Assignment and to consummate the transactions contemplated hereby
                and to
                become a Lender under the Credit Agreement, (ii) it meets all requirements
                of an Eligible Assignee under the Credit Agreement, (iii) from and
                after the Effective Date, it shall be bound by the provisions of
                the
                Credit Agreement and, to the extent of the Assigned Interest, shall
                have
                the obligations of a Lender thereunder, (iv) it has received a copy
                of the
                Credit Agreement and such other documents and information as it has
                deemed
                appropriate to make its own credit analysis and decision to enter
                into
                this Assignment and to purchase the Assigned Interest on the basis
                of
                which it has made such analysis and decision, and (v) if it is a
                Lender
                not organized under the laws of the United States of America, any
                State
                thereof or the District of Columbia, attached to the Assignment is
                any
                documentation required to be delivered by it pursuant to the terms
                of the
                Credit Agreement, duly completed and executed by the Assignee; and
                (b)
                agrees that (i) it will, independently and without reliance on the
                Administrative Agent, the Assignor or any other Lender, and based
                on such
                documents and information as it shall deem appropriate at that time,
                continue to make its own credit decisions in taking or not taking
                action
                under the Loan Documents, and (ii) it will perform in accordance
                with
                their terms all of the obligations which by the terms of the Credit
                Documents are required to be performed by it as a
                Lender.




ANNEX-A-1-1




Payments .
      From
      and after the Effective Date, the Administrative Agent shall make all payments
      in respect of the Assigned Interest (including payments of principal, interest,
      fees and other amounts) to the Assignor for amounts which have accrued to but
      excluding the Effective Date and to the Assignee for amounts which have accrued
      from and after the Effective Date.[ 2 ]




General
      Provisions .
      This
      Assignment shall be binding upon, and inure to the benefit of, the parties
      hereto and their respective successors and assigns. This Assignment may be
      executed in any number of counterparts, which together shall constitute one
      instrument. Delivery of an executed counterpart of a signature page of this
      Assignment by telecopy shall be effective as delivery of a manually executed
      counterpart of this Assignment. This Assignment shall be governed by, and
      construed in accordance with, the internal laws of the State of New York without
      regard to conflict of laws principles thereof.







[2]
              Or,
                  if agreed among Administrative Agent, Assignor and Assignee: “From and
                  after the Effective Date, the Administrative Agent shall make all
                  payments
                  in respect of the Assigned Interest (including payments of principal,
                  interest, fees and other amounts) to the Assignee whether such
                  amounts
                  have accrued prior to or on or after the Effective Date. The Assignor
                  and
                  the Assignee shall make all appropriate adjustments in payments
                  by the
                  Administrative Agent for periods prior to the Effective Date or
                  with
                  respect to the making of this assignment directly between
                  themselves.”
   ANNEX-A-1-2
  **EXHIBIT
        B-1**


**TO
      REVOLVING CREDIT AGREEMENT**




[FORM
      OF] BORROWING REQUEST


Please
      see attached Notice of Revolving Credit Advance.






B-1-1




**EXHIBIT
        B-2**


**TO
      REVOLVING CREDIT AGREEMENT**




[FORM
      OF]
      BORROWING BASE CERTIFICATE




Please
      see attached Borrowing Base Certificate.


B-2-1




**EXHIBIT
      C-1**


**TO
      REVOLVING CREDIT AGREEMENT**




[FORM
      OF]
      COLLATERAL ACCESS AGREEMENT




This
      COLLATERAL ACCESS AGREEMENT (this “ Agreement ”)
      is
      given this _____ day of _______________, 2007, by ___________, a ___________
      (“ Landlord ”)
      and
      ____________________a _________ (“ Tenant ”)
      in
      favor of _________________, as collateral agent for the Lenders under the Credit
      Agreement described below (together with its successors and permitted assigns,
      “ Agent ”),
      for
      the benefit of the Secured Creditors under such Credit Agreement (the
“ Lenders ”).




BACKGROUND




A. Landlord
      and Tenant are parties to that certain __________ Lease dated ____________
      (as
      amended, supplemented or otherwise modified from time to time, the “ Lease ”).




B. Tenant
      is
      a direct or indirect subsidiary entity of James River Coal Company
      (“ Borrower ”).




C. Borrower,
      together with other related parties, is entering into a Credit Agreement (as
      the
      same may be amended, restated or refinanced from time to time, the “ Credit
      Agreement ”)
      with
      Agent, acting for itself and as Administrative Agent for the other Lenders
      that
      are also parties to the Credit Agreement.




D. The
      Credit Agreement requires that Tenant pledge and grant a security interest
      to
      Agent in, among other things, all of Tenant’s accounts, inventory, general
      intangibles, documents, chattel paper, instruments, machinery, equipment,
      furniture and fixtures, including without limitation all tipples, conveyor
      belts
      and systems, loading and coal washing facilities and railroad tracks and all
      other surface or subsurface machinery, equipment, fixtures, facilities and
      other
      property of whatsoever kind or nature now or hereafter located on or under
      any
      of the premises under the Lease(the “ Premises ”)
      which
      are used or useful for the mining, gathering, extraction, loading, production,
      treatment, processing, storage or transportation of coal and other minerals,
      together with all other tangible property of any kind or character, together
      with all replacements thereof, together with all additions, accessions,
      substitutions, replacements and improvements to, and proceeds of, the foregoing
      (all of foregoing, the “ Collateral ”).




C-1-1




Intending
      to be legally bound, Landlord hereby covenants and agrees with Agent as
      follows:




1. Lease .
      The
      Lease is in full force and effect. To the knowledge of Landlord, no default
      exists under the Lease. A true and correct copy of the Lease is attached to
      this
      Agreement as Exhibit A.




2. Notices
      to Agent .
      If any
      default or event shall occur under the Lease which would be grounds for Landlord
      to terminate the Lease, and Landlord sends a written notice to Tenant, Landlord
      shall at the same time provide a copy of such notice to Agent.




3. Waiver
      of Liens .
      Landlord waives any interest in the Collateral and agrees not to distrain or
      levy upon any Collateral or to assert any lien, right of distraint or other
      claim against the Collateral for any reason. Landlord agrees that the Collateral
      may be stored, utilized, and/or installed at the Premises and shall not be
      deemed a fixture or part of the real estate but shall at all times be considered
      personal property, whether or not any Collateral becomes so related to the
      real
      estate that an interest therein would otherwise arise under applicable
      law.




B-2-2




4. Access
      and Opportunity to Cure .
      (a) Agent may, at any time or times hereafter, without any fee or charge
      for rent or otherwise, enter upon the Premises to inspect the Collateral and
      Tenant’s other assets located on the Premises. Agent shall have the right, but
      not the obligation, to cure Tenant’s defaults under the Lease; *provided* ,
      that
      Agent shall have at least thirty (30) days following receipt of written notice
      of default to cure such default (or to commence the cure thereof, as provided
      below) before the Lease terminates or Landlord takes any action to terminate
      the
      Lease or otherwise to exercise its rights and remedies under the Lease in
      respect of such default.




(b) Landlord
      will accept performance by or on behalf of Agent as if it were done by Tenant.
      During such cure period, the Agent shall have the right to (i) notify
      Landlord of Agent’s desire to cure Tenant’s default and to nullify any notice of
      any such default, (ii) pay or cause to be paid all amounts due and payable
      under the Lease (whether in the form of tonnage royalties, minimum annual
      royalty or otherwise), and (iii) comply or in good faith, with reasonable
      diligence, commence to remedy any Tenant default under the Lease, which is
      reasonably susceptible of being remedied by Agent.




(c) Agent
      shall have the right to access the Premises and take possession of, sale and/or
      remove collateral securing Tenant’s obligations so long as (i) Agent pays
      the rent and other charges payable under the Lease for such period during which
      Agent remains on the Premises and Agent assumes Tenant’s responsibilities under
      the Lease which arise during such period Agent remains on the Premises, and
      (ii) Agent shall repair any damage to the Premises directly resulting from
      its possession thereof. Notwithstanding anything to the contrary herein, Agent
      shall at no time have any obligation to remove the Collateral from the Premises
      and nothing shall obligate Agent to pay any amounts due or perform any
      obligations of Tenant under the Lease.




B-2-3




5. Amendments
      to Lease .
      Landlord will promptly deliver to Agent a copy of any amendment or other
      modification to the Lease.




6. Memorandum
      of Lease .
      Upon
      request from Tenant or Agent, Landlord shall execute a Memorandum of Lease
      in
      form and substance reasonably acceptable to Landlord and Agent and as otherwise
      sufficient for recordation in the county real estate records where the property
      subject to the Lease is located.




7. Remedies
      under Credit Agreement .
      Landlord understands that upon a default under the Credit Agreement, the
      enforcement of the rights and legal remedies of Agent under the Credit Agreement
      could result in the Lease being sold and assigned to a third party chosen by
      Agent. Landlord confirms that such an assignment or transfer of the Lease will
      not be a default under the Lease, including an assignment or transfer of the
      Lease to Agent or any Lender, or
      any
      nominee of Agent or a  Lender, in
      connection with any exercise of any judicial or other remedies available to
      the
      Agent or the Lenders following a default under the Loan, including without
      limitation the appointment by a court of a receiver to assume possession and/or
      operation of the Premises and a transfer resulting from an order given in a
      bankruptcy, reorganization, insolvency or similar proceeding.




8. Reliance;
      Binding Effect .
      Agent
      and the Lenders and their respective successors and assigns shall be permitted
      to rely upon and enforce this Agreement, which shall not be amended, modified
      or
      revoked without Agent’s prior written consent and shall be third-party
      beneficiaries hereof. This Agreement will be binding upon the successors and
      assigns of the parties.




B-2-4




9. Notices .
      Notices
      to the Agent and any Lender shall be sent to the Agent by certified mail or
      reputable overnight delivery service at Agent’s address on the first page
      hereof, Attention __________ (as such address may be changed by notice to
      Landlord).




10. Governing
      Jurisdiction .
      This
      Agreement shall be governed by and shall be construed and enforced in accordance
      with the internal laws of the state of jurisdiction for the Lease.




11. Continuing
      Obligation .
      This
      Agreement shall continue until such time as all of the obligations of Tenant
      with respect to the Loan have been paid and performed in full, and all
      commitments of all Lenders under all loan documents in connection with the
      Credit Agreement have been terminated and the Landlord has been notified thereof
      in writing by Agent.




12. Counterparts
      and Facsimile Signatures .  This
      Agreement may be executed in any number of counterparts, by different parties
      hereto in separate counterparts and by facsimile signature, each of which when
      so executed and delivered shall be deemed to be an original and all of which
      taken together shall constitute but one and the same agreement.




[REMAINDER
      OF THIS PAGE IS LEFT BLANK INTENTIONALLY]




B-2-5





IN
      WITNESS WHEREOF, Landlord and Tenant have executed this Agreement, intending
      to
      be legally bound, as of the date set forth above:




LANDLORD:By:Name:Title:




Accepted:AGENT:[_______________]By:Name:Title:




B-2-6




ACKNOWLEDGEMENT




STATE
      OF
      __________ )




)
      ss.:




COUNTY
      OF
      _________ )




On
      ____________________, before me, ______________________________________, a
      notary public, personally appeared __________________________________,
      personally known to me (or proved to me on the basis of satisfactory evidence)
      to be the person(s) whose name(s) is/are subscribed to the within instrument
      and
      acknowledged to me that he/she/they executed the same in his/her/their
      authorized capacity(ies), and that by his/her/their signature(s) on the
      instrument the person(s), or the entity upon behalf of which the person(s)
      acted, executed the instrument.


WITNESS
      my hand and official seal.







__________________________________


Notary
      Public




Print
      Name:





A
      resident of ______________ County




State
      of
      _____________








My
      commission expires:








_________________________


(Space
      above for official notarial seal)


C-1-7




ACKNOWLEDGEMENT




STATE
      OF
      __________ )


) ss.:




COUNTY
      OF
      _________ )




On
      ____________________, before me, ______________________________________, a
      notary public, personally appeared __________________________________,
      personally known to me (or proved to me on the basis of satisfactory evidence)
      to be the person(s) whose name(s) is/are subscribed to the within instrument
      and
      acknowledged to me that he/she/they executed the same in his/her/their
      authorized capacity(ies), and that by his/her/their signature(s) on the
      instrument the person(s), or the entity upon behalf of which the person(s)
      acted, executed the instrument.


WITNESS
      my hand and official seal.








__________________________________


Notary
      Public




Print
      Name:





A
      resident of ______________ County




State
      of
      _____________








My
      commission expires:








_________________________


(Space
      above for official notarial seal)




C-1-8




**EXHIBIT
      C-2**


**TO
      REVOLVING CREDIT AGREEMENT**




[FORM
      OF]
      COMPLIANCE CERTIFICATE




[date]




THE
      UNDERSIGNED HEREBY CERTIFIES SOLELY IN HIS CAPACITY AS THE **[CHIEF
      FINANCIAL OFFICER]/[CHIEF ACCOUNTING OFFICER]** OF **JAMES RIVER COAL COMPANY** AS
      FOLLOWS:




1. I
      am the
      [Chief Financial Officer]/[Chief Accounting Officer] of **JAMES
      RIVER COAL COMPANY.**




2. I
      have
      reviewed the terms of that certain Revolving Credit Agreement, dated as of
      February 26, 2007 (as it may be amended, supplemented or otherwise modified,
      the
“ Credit
      Agreement ”;
      the
      terms defined therein and not otherwise defined herein being used herein as
      therein defined), by and among **JAMES
      RIVER COAL COMPANY** and
      certain of its Subsidiaries identified as borrowers on the signature pages
      thereto **** (collectively,
      the “ Borrowers ”),
      and
      certain other Credit Parties party thereto from time to time, as Guarantors,
      the
      Lenders party thereto from time to time, **GENERAL
      ELECTRIC CAPITAL CORPORATION** ,
      as
      Administrative Agent, Collateral Agent and co-lead arranger with **MORGAN
      STANLEY SENIOR FUNDING, INC.** ,
      acting
      as co-lead arranger., and the other Loan Documents thereunder, and I have made,
      or have caused to be made under my supervision, a review in reasonable detail
      of
      the transactions and consolidated financial condition of the Borrowers and
      their
      respective Subsidiaries during the accounting period covered by the attached
      financial statements.




3. The
      attached financial statements for the Fiscal Month or Fiscal Quarter, as the
      case may be, ended [ **mm/dd/yy** ]
      are
      prepared in accordance with GAAP. Attached as Annex C-2 is (a) a detailed
      listing of all Asset Dispositions made pursuant to Section
      9.04(j) of the
      Credit Agreement, all Permitted Investments made pursuant to Section
      9.07 of the
      Credit Agreement, all Sales and Leasebacks made pursuant to Section
      9.08 of the
      Credit Agreement and all Restricted Payments made pursuant to Section
      9.17 of the
      Credit Agreement, together with cumulative calculations of the amount of all
      such transactions since the Closing Date and (b) a calculation of compliance
      with Sections
      10.01 , 10.02 and 10.03 of the
      Credit Agreement, including a reconciliation of the applicable items to the
      financial statements being delivered herewith. The Credit Parties have paid
      all
      premiums, contributions and other payments required to be made under the Coal
      Act and the Black Lung Act (each as defined in the Credit Agreement) as and
      when
      due, in each case except to the extent subject to a Permitted Protest (as
      defined in the Credit Agreement).




C-2-1




The
      foregoing certifications, together with the financial statements delivered
      with
      this Certificate in support hereof, are made and delivered as of the date hereof
      pursuant to Section 7.01(d) of the
      Credit Agreement.




**JAMES
              RIVER COAL COMPANY**,
              as Administrative BorrowerBy:Title:




C-2-2


**EXHIBIT
        N-1**
 **TO
        REVOLVING CREDIT AGREEMENT**
  [FORM
        OF] NOTE
  
  New
        York,
        New York
  $___,___,____
              February
                  26,
                  2007
  FOR
        VALUE
        RECEIVED, each of the undersigned, JAMES RIVER COAL COMPANY (“JRCC”), and
        certain of JRCC’s subsidiaries identified on the signature pages hereof, as
        borrowers (such subsidiaries, together with JRCC, are referred to hereinafter
        each individually as a “Borrower”, and collectively, jointly and severally, as
        the “Borrowers”) HEREBY, JOINTLY AND SEVERALLY, PROMISE TO PAY to the order of
        _______________________ (“Lender”), at the offices of GENERAL ELECTRIC CAPITAL
        CORPORATION, a New York corporation, as Agent for Lenders (“Agent”), at its
        address at 201 Merritt 7, Third Floor, Norwalk, CT 06851, or at such other
        place
        as Agent may designate from time to time in writing, in lawful money of the
        United States of America and in immediately available funds, the amount of
        _______________________ DOLLARS AND _______ CENTS ($___,___,___) or, if less,
        the aggregate unpaid amount of all Revolving Advances made to the Borrowers
        under the Credit Agreement (as hereinafter defined). All capitalized terms
        used
        but not otherwise defined herein have the meanings given to them in the Credit
        Agreement.
  This
        Note
        is one of the Notes issued pursuant to that certain Credit Agreement dated
        as of
        February 26, 2007 by and among the Borrowers, the other Persons named therein
        as
        Credit Parties, General Electric Capital Corporation, as co-lead arranger,
        administrative agent, and collateral agent, GE Capital Finance Inc. as L/C
        Issuer and the other Persons signatory thereto from time to time as Lenders
        (including all annexes, exhibits and schedules thereto, and as from time
        to time
        amended, restated, supplemented or otherwise modified, the “Credit Agreement”),
        and is entitled to the benefit and security of the Credit Agreement, the
        Security Agreement and all of the other Loan Documents referred to therein.
        Reference is hereby made to the Credit Agreement for a statement of all of
        the
        terms and conditions under which the Loans evidenced hereby are made and
        are to
        be repaid. The date and amount of each Revolving Advance made by Lenders
        to the
        Borrowers, the rates of interest applicable thereto and each payment made
        on
        account of the principal thereof, shall be recorded by Agent on its books;
        provided that the failure of Agent to make any such recordation shall not
        affect
        the obligations of the Borrowers to make a payment when due of any amount
        owing
        under the Credit Agreement or this Note in respect of the Revolving Advances
        made by Lender to the Borrowers.
  The
        principal amount of the indebtedness evidenced hereby shall be payable in
        the
        amounts and on the dates specified in the Credit Agreement, the terms of
        which
        are hereby incorporated herein by reference. Interest thereon shall be paid
        until such principal amount is paid in full at such interest rates and at
        such
        times, and pursuant to such calculations, as are specified in the Credit
        Agreement.
  N-1-1
  If
        any
        payment on this Note becomes due and payable on a day other than a Business
        Day,
        the maturity thereof shall be extended to the next succeeding Business Day
        and,
        with respect to payments of principal, interest thereon shall be payable
        at the
        then applicable rate during such extension.
  Upon
        and
        after the occurrence of any Event of Default, this Note may, as provided
        in the
        Credit Agreement, and without demand, notice or legal process of any kind,
        be
        declared, and immediately shall become, due and payable.
  Time
        is
        of the essence of this Note. Demand, presentment, protest and notice of
        nonpayment and protest are hereby waived by each of the Borrowers.
  Except
        as
        provided in the Credit Agreement, this Note may not be assigned by Lender
        to any
        Person.
  **THIS
        NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
        STATE
        OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT
        STATE.**
  [Remainder
        of page left intentionally blank]
  N-1-2
  **IN
        WITNESS WHEREOF** ,
        the
        Borrowers have caused this Note to be duly executed and delivered by its
        officer
        thereunto duly authorized as of the date and at the place first written
        above.
  **JAMES
                RIVER COAL COMPANY**By:Title:
  N-1-3
  **JAMES
                  RIVER COAL SERVICE COMPANY**By:Title:
 N-1-4
  **LEECO,
                    INC.**By:Title:
  N-1-5
  **TRIAD
                      MINING, INC.**By:Title:
 N-1-6
 **TRIAD
                      UNDERGROUND MINING, LLC**By:Title:
  N-1-7
 **BLEDSOE
                        COAL CORPORATION**By:Title:
  N-1-8
 **JOHNS
                          CREEK ELKHORN COAL CORPORATION**By:Title:
  N-1-9
 **BELL
                            COUNTY COAL CORPORATION**By:Title:
  N-1-10
 **JAMES
                              RIVER COAL SALES, INC.**By:Title:
  N-1-11
 **BLEDSOE
                                COAL LEASING COMPANY**By:Title:
  N-1-12
 **BLUE
                                  DIAMOND COAL COMPANY**By:Title:
  N-1-13
 **MCCOY
                                    ELKHORN COAL CORPORATION**By:Title:
  N-1-14


**EXHIBIT
      N-2**


**TO
      REVOLVING CREDIT AGREEMENT**




[FORM
      OF]
      NOTICE OF CONVERSION/CONTINUATION




Reference
      is made to the Revolving Credit Agreement, dated as of February 26, 2007 (as
      it
      may be amended, supplemented or otherwise modified, the “ Credit
      Agreement ”;
      the
      terms defined therein and not otherwise defined herein being used herein as
      therein defined), by and among **JAMES
      RIVER COAL COMPANY** and
      certain of its Subsidiaries identified as borrowers on the signature pages
      thereto **** (collectively,
      the “ Borrowers ”),
      and
      certain other Credit Parties party thereto from time to time, as Guarantors,
      the
      Lenders party thereto from time to time, **GENERAL
      ELECTRIC CAPITAL CORPORATION** ,
      as
      Administrative Agent, Collateral Agent and co-lead arranger with **MORGAN
      STANLEY SENIOR FUNDING, INC.** ,
      acting
      as co-lead arranger.




Pursuant
      to Section 4.01(d) of the
      Credit Agreement, the Borrowers desire to convert or to continue the following
      Loans, each such conversion and/or continuation to be effective as of **[mm/dd/yy]** :




$**[___,___,___]**
            
            LIBOR
                Rate Loans to be continued with LIBOR of ____ month(s)$**[___,___,___]**
            
            Base
                Rate Loans to be converted to LIBOR Rate Loans with LIBOR of ____
                month(s)$**[___,___,___]**
            
            LIBOR
                Rate Loans to be converted to Base Rate
                Loans




The
      Administrative Borrower hereby certifies, on behalf of itself and the other
      Credit Parties, that as of the date hereof, no event has occurred and is
      continuing that would constitute an Event of Default or a Default.




Date:
              [mm/dd/yy]
            **JAMES
              RIVER COAL COMPANY**,as
              Administrative BorrowerBy:Title:




N-2-1




**EXHIBIT
      O-1**


**TO
      REVOLVING CREDIT AGREEMENT**




[FORM
      OF]
      OFFICER’S CERTIFICATE




[DATE]




THE
      UNDERSIGNED HEREBY CERTIFIES SOLELY IN HIS CAPACITY AS AN AUTHORIZED OFFICER
      OF
      JAMES RIVER COAL COMPANY AS FOLLOWS:




1. I
      am the
      [Chief Financial Officer]/[Chief Accounting Officer] of **JAMES
      RIVER COAL COMPANY** .




2. I
      have
      reviewed the terms of that certain Revolving Credit Agreement, dated as of
      February 26, 2007 (as it may be amended, supplemented or otherwise modified,
      the
“ Credit
      Agreement ”;
      the
      terms defined therein and not otherwise defined herein being used herein as
      therein defined), by and among **JAMES
      RIVER COAL COMPANY** and
      certain of its Subsidiaries identified as borrowers on the signature pages
      thereto **** (collectively,
      the “ Borrowers ”),
      and
      certain other Credit Parties party thereto from time to time, as Guarantors,
      the
      Lenders party thereto from time to time, **GENERAL
      ELECTRIC CAPITAL CORPORATION** ,
      as
      Administrative Agent, Collateral Agent and co-lead arranger with **MORGAN
      STANLEY SENIOR FUNDING, INC.** ,
      acting
      as co-lead arranger., and the other Loan Documents thereunder, and I have made,
      or have caused to be made under my supervision, a review in reasonable detail
      of
      the transactions and financial condition of the Borrowers and their respective
      Subsidiaries during the accounting period covered by the attached financial
      statements.




3. The
      examination described in paragraph 2 above did not disclose, and I have no
      knowledge of, the existence of any condition or event which constitutes, during
      or at the end of the accounting period covered by the attached financial
      statements or as of the date of this Certificate, an Event of Default or a
      continuing Default as of the date of this Certificate, except as set forth
      in a
      separate attachment, if any, to this Certificate, describing in detail, the
      nature of the condition or event, the period during which it has existed and
      the
      action which the Borrowers and their respective Subsidiaries have taken, are
      taking, and propose to take with respect to each such condition or
      event.




O-1-1





The
      foregoing certifications, together with the financial statements delivered
      with
      this Certificate in support hereof, are made and delivered as of the date first
      written above, pursuant to Section 7.01(d) of the
      Credit Agreement.




**JAMES
              RIVER COAL COMPANY**,as
              Administrative BorrowerBy:Title:




O-1-2




**EXHIBIT
      O-2**


**TO
      REVOLVING CREDIT AGREEMENT**








[FORM
      OF]
      OFFICER’S CERTIFICATE





[DATE]





THE
      UNDERSIGNED HEREBY CERTIFIES SOLELY IN HIS CAPACITY AS AN AUTHORIZED OFFICER
      OF
      EACH OF THE UNDERSIGNED CREDIT PARTIES AS FOLLOWS:




1. I
      am the
      [Senior Officer] of each of the undersigned Credit Parties **** (each,
      a
“ Company ”) **.**




2. I
      have
      reviewed the terms of that certain Revolving Credit Agreement, dated as of
      February 26, 2007 (as it may be amended, supplemented or otherwise modified,
      the
“ Credit
      Agreement ”;
      the
      terms defined therein and not otherwise defined herein being used herein as
      therein defined), by and among **JAMES
      RIVER COAL COMPANY** and
      certain of its Subsidiaries **** identified
      as borrowers on the signature pages thereto (collectively, the “ Borrowers ”),
      and
      certain other Credit Parties party thereto from time to time, as Guarantors,
      the
      Lenders party thereto from time to time, **GENERAL
      ELECTRIC CAPITAL CORPORATION** ,
      as
      Administrative Agent, Collateral Agent and co-lead arranger with **MORGAN
      STANLEY SENIOR FUNDING, INC.** ,
      acting
      as co-lead arranger., and the other Loan Documents thereunder, and to my
      knowledge and on behalf of each Company, all of the representations and
      warranties of each Company contained in the Credit Agreement or in any of the
      other Loan Documents are true and correct in all material respects on and as
      of
      the date hereof as if made on such date, that no breach of any covenant
      contained in Article VIII, Article IX or Article X of the Credit Agreement
      has
      occurred or would result from the execution, delivery of and performance under
      the Credit Agreement and the transactions contemplated thereunder; all of the
      conditions set forth in Section
      5.01(p)(ii) of the
      Credit Agreement have been satisfied on such date (or shall, to the extent
      permitted by the Credit Agreement, be satisfied substantially simultaneously
      with the incurrence of Loans on the date hereof); the Credit Parties have an
      Availability as of the date hereof greater than or equal to $25,000,000 after
      giving effect to the initial use of proceeds of the Loans; there has been no
      repayment of Indebtedness that (i) would reduce the $125,000,000 amount
      permitted for credit facilities under Section 4.03(a)(1) of the Indenture,
      or (ii) would reduce the $10,000,000 amount permitted for credit facilities
      under Section 4.03(a)(10) of the Indenture or specify such amounts; and
      there is no other Indebtedness that would reduce the permitted amounts or
      specify all such amounts (other than Indebtedness that is subject to the
      Indenture Reserve).




O-2-1





The
      foregoing certifications, together with the financial statements delivered
      with
      this Certificate in support hereof, are made and delivered as of the date set
      forth above, pursuant to Section 5.01(p)(ii) of the
      Credit Agreement.





**ADMINISTRATIVE
              BORROWER****JAMES RIVER COAL
              COMPANY**By:Title:
              Vice President




C-1-1




**BORROWERS**
                
                **JAMES
                  RIVER COAL SERVICE COMPANY**
                **LEECO,
                  INC.**
                **TRIAD
                  MINING, INC.**
                **TRIAD
                  UNDERGROUND MINING, LLC**
                **BLEDSOE
                  COAL CORPORATION**
                **JOHNS
                  CREEK ELKHORN COAL CORPORATION**
                **BELL
                  COUNTY COAL CORPORATION**
                **JAMES
                  RIVER COAL SALES, INC.**
                **BLEDSOE
                  COAL LEASING COMPANY**
                **BLUE
                  DIAMOND COAL COMPANY**
                **MCCOY
                  ELKHORN COAL
                  CORPORATION**








By:Title: 
              Vice President on behalf of each of the above
              entities




O-2-2








**GUARANTORS**
              
              **JOHNS
                CREEK PROCESSING COMPANY**
              **JOHNS
                CREEK COAL COMPANY**
              **SHAMROCK
                COAL COMPANY, INCORPORATED**
              **EOLIA
                RESOURCES, INC.**
              **BDCC
                HOLDING COMPANY, INC.**


By:Title:   
                Vice President on behalf of each of the above
                entities
  O-2-3