Document



Exhibit 10.2
EXECUTION VERSION



	
	
	 








ASSET-BASED REVOLVING CREDIT AGREEMENT
Dated as of April 3, 2017 
among
CONTURA ENERGY, INC. 
and certain of its Subsidiaries, 
as the Borrowers
THE GUARANTORS PARTY HERETO
CITIBANK, N.A., 
as Administrative Agent
CITIBANK, N.A., 
as Swingline Lender
CITIBANK, N.A., 
BMO HARRIS BANK N.A.
and
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, 
as L/C Issuers
The Other Lenders Party Hereto
and
CITIGROUP GLOBAL MARKETS INC., 
BMO CAPITAL MARKETS CORP. and 
CREDIT SUISSE SECURITIES (USA) LLC, 
as Joint Lead Arrangers and Joint Bookrunners




	
	
	 
















TABLE OF CONTENTS


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PAGE
	
		
	ARTICLE I

	DEFINITIONS AND ACCOUNTING TERMS

	Section 1.01.  Defined Terms
	2

	Section 1.02.  Other Interpretive Provisions
	52

	Section 1.03.  Accounting Terms
	52

	Section 1.04.  Times of Day
	53

	Section 1.05.  Timing of Payment or Performance
	53

	Section 1.06.  Letter of Credit Amounts
	53

	Section 1.07.  Reserves
	53

	Section 1.08.  Pro Forma Calculations
	53

	ARTICLE II

	THE COMMITMENTS AND CREDIT EXTENSIONS

	Section 2.01.  Loans
	54

	Section 2.02.  Borrowings, Conversions and Continuations of Loans
	54

	Section 2.03.  Protective Advances
	56

	Section 2.04.  Letters of Credit
	56

	Section 2.05.  Swingline Loans
	64

	Section 2.06.  Prepayments
	66

	Section 2.07.  Termination or Reduction of Commitments
	68

	Section 2.08.  Repayment of Loans
	68

	Section 2.09.  Interest
	68

	Section 2.10.  Fees
	69

	Section 2.11.  Computation of Interest and Fees
	69

	Section 2.12.  Evidence of Debt
	69

	Section 2.13.  Payments Generally; Administrative Agent’s Clawback
	70

	Section 2.14.  Sharing of Payments by Lenders
	71

	Section 2.15.  Increase in Facility
	72

	Section 2.16.  Defaulting Lender
	73

	ARTICLE III

	TAXES, YIELD PROTECTION AND ILLEGALITY

	Section 3.01.  Taxes
	75

	Section 3.02.  Illegality
	78

	Section 3.03.  Inability to Determine Rates
	79

	Section 3.04.  Increased Costs; Reserves on Eurocurrency Rate Loans
	79

	Section 3.05.  Compensation for Losses
	81

	Section 3.06.  Mitigation Obligations; Replacement of Lenders
	82






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	Section 3.07.  Survival
	82

	ARTICLE IV

	CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

	Section 4.01.  Conditions of Effectiveness
	82

	Section 4.02.  Conditions to All Credit Extensions
	85

	ARTICLE V

	REPRESENTATIONS AND WARRANTIES

	Section 5.01.  Existence, Qualification and Power
	86

	Section 5.02.  Authorization; No Contravention
	86

	Section 5.03.  Governmental Authorization
	86

	Section 5.04.  Binding Effect
	87

	Section 5.05.  Financial Statements; No Material Adverse Effect
	87

	Section 5.06.  Litigation
	87

	Section 5.07.  No Default
	88

	Section 5.08.  Ownership and Identification of Property
	88

	Section 5.09.  Environmental Compliance
	88

	Section 5.10.  Insurance
	89

	Section 5.11.  Taxes
	89

	Section 5.12.  ERISA Compliance
	89

	Section 5.13.  Subsidiaries
	90

	Section 5.14.  Margin Regulations; Investment Company Act
	90

	Section 5.15.  Disclosure
	90

	Section 5.16.  Compliance with Laws
	90

	Section 5.17.  Anti-Corruption; Sanctions; Terrorism Laws
	90

	Section 5.18.  Intellectual Property; Licenses, Etc
	91

	Section 5.19.  Collateral Documents
	91

	Section 5.20.  Mines
	92

	Section 5.21.  Solvency
	92

	Section 5.22.  Labor Relations
	92

	Section 5.23.  Agreements
	92

	Section 5.24.  Senior Debt
	92

	Section 5.25.  Use of Proceeds
	92

	ARTICLE VI

	AFFIRMATIVE COVENANTS

	Section 6.01.  Financial Statements
	93

	Section 6.02.  Certificates; Other Information
	93

	Section 6.03.  Notices
	96

	Section 6.04.  Payment of Obligations
	96

	Section 6.05.  Preservation of Existence
	96

	Section 6.06.  Maintenance of Properties
	96






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	Section 6.07.  Maintenance of Insurance
	97

	Section 6.08.  Compliance with Laws
	97

	Section 6.09.  Books and Records
	98

	Section 6.10.  Inspection Rights; Field Exams; Appraisals
	98

	Section 6.11.  Use of Proceeds
	99

	Section 6.12.  Additional Guarantors
	99

	Section 6.13.  Unrestricted Subsidiaries
	99

	Section 6.14.  Preparation of Environmental Reports
	99

	Section 6.15.  Certain Long Term Liabilities and Environmental Reserves
	99

	Section 6.16.  Covenant to Give Security
	100

	Section 6.17.  Information Regarding Collateral
	102

	Section 6.18.  Senior Debt
	102

	Section 6.19.  Administration of Accounts
	102

	Section 6.20.  Cash Management System
	102

	Section 6.21.  Post-Closing Covenants
	103

	ARTICLE VII

	NEGATIVE COVENANTS

	Section 7.01.  Liens
	103

	Section 7.02.  Investments
	106

	Section 7.03.  Indebtedness
	108

	Section 7.04.  Fundamental Changes
	111

	Section 7.05.  Dispositions
	111

	Section 7.06.  Restricted Payments
	113

	Section 7.07.  Accounting Changes; Change in Nature of Business; Foreign Operations
	115

	Section 7.08.  Transactions With Affiliates
	115

	Section 7.09.  Use of Proceeds
	116

	Section 7.10.  Burdensome Agreements
	116

	Section 7.11.  Fiscal Year
	117

	Section 7.12.  Sale and Lease-Backs
	117

	Section 7.13.  Amendments or Waivers to Certain Agreements
	117

	Section 7.14.  No Further Negative Pledge
	118

	Section 7.15.  Anti-Corruption; Sanctions; Terrorism Laws
	118

	Section 7.16.  [Reserved]
	118

	Section 7.17.  Minimum Fixed Charge Coverage Ratio
	118

	ARTICLE VIII

	EVENTS OF DEFAULT AND REMEDIES

	Section 8.01.  Events of Default
	118

	Section 8.02.  Remedies Upon Event of Default
	120

	Section 8.03.  Exclusion of Immaterial Subsidiaries
	121

	Section 8.04.  Application of Funds
	121






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	ARTICLE IX

	ADMINISTRATIVE AGENT

	Section 9.01.  Appointment
	122

	Section 9.02.  Delegation of Duties
	123

	Section 9.03.  Liability of Agents
	123

	Section 9.04.  Reliance by the Administrative Agent
	124

	Section 9.05.  Notice of Default
	125

	Section 9.06.  Credit Decision; Disclosure of Information by Agents
	125

	Section 9.07.  Indemnification of the Administrative Agent
	126

	Section 9.08.  Withholding Tax
	126

	Section 9.09.  Administrative Agent in Its Individual Capacity
	126

	Section 9.10.  Resignation by the Administrative Agent
	128

	Section 9.11.  Administrative Agent May File Proofs of Claim
	129

	Section 9.12.  Collateral and Guaranty Matters
	129

	Section 9.13.  Arrangers and Bookrunners
	130

	Section 9.14.  Appointment of Supplemental Collateral Agents
	130

	Section 9.15.  Reports and Financial Statements
	131

	Section 9.16.  Posting of Approved Electronic Communications
	132

	ARTICLE X

	GUARANTEE

	Section 10.01.  Guarantee
	133

	Section 10.02.  Right of Contribution
	134

	Section 10.03.  No Subrogation
	134

	Section 10.04.  Amendments, etc
	134

	Section 10.05.  Guarantee Absolute and Unconditional
	135

	Section 10.06.  Waiver by Guarantors
	136

	Section 10.07.  Release of Liens and Release of Guaranty
	136

	Section 10.08.  Subordination of Other Obligations
	137

	Section 10.09.  Authority of Guarantors or Borrowers
	138

	Section 10.10.  Financial Condition of Borrowers
	138

	Section 10.11.  Taxes and Payments
	138

	Section 10.12.  Assignments
	138

	Section 10.13.  Reinstatement
	138

	Section 10.14.  Keepwell
	138

	ARTICLE XI

	MISCELLANEOUS

	Section 11.01.  Amendments, Etc
	139

	Section 11.02.  Notices; Effectiveness; Electronic Communications
	141

	Section 11.03.  No Waiver; Cumulative Remedies
	142

	Section 11.04.  Expenses; Indemnity; Damage Waiver
	143






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	Section 11.05.  Payments Set Aside
	145

	Section 11.06.  Successors and Assigns
	146

	Section 11.07.  Treatment of Certain Information; Confidentiality
	149

	Section 11.08.  Right of Setoff
	150

	Section 11.09.  Usury Saving Clause
	150

	Section 11.10.  Counterparts; Integration; Effectiveness
	151

	Section 11.11.  Survival of Representations and Warranties
	151

	Section 11.12.  Severability
	151

	Section 11.13.  Replacement of Lenders
	151

	Section 11.14.  Governing Law; Jurisdiction; Etc
	152

	Section 11.15.  Waiver of Jury Trial
	153

	Section 11.16.  Designation of Secured Agreements
	153

	Section 11.17.  No Advisory or Fiduciary Responsibility
	154

	Section 11.18.  Joint and Several Liability
	154

	Section 11.19.  Contribution and Indemnification Among the Borrowers
	155

	Section 11.20.  Agency of the Borrower Representative for Each Other Borrower
	156

	Section 11.21.  USA Patriot Act Notice
	156

	Section 11.22.  Time of the Essence
	156

	Section 11.23.  Acknowledgement and Consent to Bail-In of EEA Financial Institutions
	156

	Section 11.24.  Intercreditor Agreement
	157
















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SCHEDULES
1.01(a)    Guarantors
1.01(b)    Excluded Wyoming Properties
1.01(d)    Reserve Areas
2.01    Commitments and L/C Sublimit
5.03    Governmental Authorization
5.08(b)    Material Owned Real Property
5.08(c)    Material Leased Real Property
5.09    Environmental Matters
5.13    Subsidiaries
5.18    Intellectual Property
5.20    Mines
6.21    Post Closing Schedule
7.01    Existing Liens
7.02    Existing Investments
7.03    Existing Indebtedness
7.08    Transactions with Affiliates
7.10    Burdensome Agreements
11.02    Administrative Agent’s Office; Certain Addresses for Notices
EXHIBITS
Form of
A    Borrowing Notice
B    Notice of Conversion or Continuation 
C    Note
D    Swingline Loan Notice
E    Compliance Certificate
F    Assignment and Acceptance
G    Borrowing Base Certificate
H    Security Agreement
I    Collateral Questionnaire
J    Collateral Questionnaire Supplement 
K    Assumption Agreement
L    Solvency Certificate
M-1    U.S. Tax Compliance Certificate
M-2    U.S. Tax Compliance Certificate
M-3    U.S. Tax Compliance Certificate
M-4    U.S. Tax Compliance Certificate






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ASSET-BASED REVOLVING CREDIT AGREEMENT
This ASSET-BASED REVOLVING CREDIT AGREEMENT (this “Agreement”) is entered into as of April 3, 2017 among each of Contura Energy, Inc., Contura Energy, LLC, Emerald Contura, LLC, Dickenson-Russell Contura, LLC, Nicholas Contura, LLC, Contura Mining Holding, LLC, Contura Coal Resources, LLC, Contura Wyoming Land, LLC, Contura Coal Sales, LLC, Contura Energy Services, LLC, Power Mountain Contura, LLC, Cumberland Contura, LLC, Contura Pennsylvania Land, LLC, Contura Freeport, LLC, Contura European Marketing, LLC, Paramont Contura, LLC, Contura Pennsylvania Terminal, LLC, Contura Capp Land, LLC, Contura Coal West, LLC and Contura Terminal, LLC (collectively, the “Borrowers”), each Guarantor party hereto, each lender from time to time party hereto, CITIBANK, N.A., as administrative agent and collateral agent (in such capacities, the “Administrative Agent”), CITIBANK, N.A., as Swingline Lender, and CITIBANK, N.A., BMO HARRIS BANK N.A.  and CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as L/C Issuers.
INTRODUCTORY STATEMENT
WHEREAS, the Borrowers have requested that the Lenders and L/C Issuers make available for the purposes specified in this Agreement a revolving credit facility;
WHEREAS, the Lenders have agreed to provide, a senior secured asset-based revolving credit facility in an aggregate principal amount of $125,000,000 (the “Facility”) as set forth herein.  All of the Borrowers’ obligations under the Facility are to be guaranteed by the Guarantors.  The Lenders are willing to extend or continue, as the case may be, such credit to the Borrowers on the terms and subject to the conditions set forth herein.
Accordingly, in consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS

Section 1.01.    Defined Terms.  As used in this Agreement, the following terms shall have the meanings set forth below:
“ABL Cash Collateral Account” means the account established by, and under the sole dominion and control of, the Administrative Agent maintained with the Administrative Agent or a bank affiliate of the Administrative Agent or any other bank reasonably acceptable to the Administrative Agent and designated by the Borrowers as the “Contura Collateral Account”.
“ABL Priority Collateral” has the meaning assigned to such term in the Term Loan Intercreditor Agreement.
“Acceptable Credit Support” means (a) a credit insurance policy satisfactory to the Administrative Agent in its Reasonable Credit Judgment (including, without limitation, as to the creditworthiness of the insurance company issuing such policy, the scope and amount of coverage, any deductibles and any other terms and conditions applicable thereto), so long as the limits and terms of such credit insurance policy are being complied with and for which the Administrative Agent is named as the beneficiary, loss payee or additional insured so as to insure that the Administrative Agent has the right to receive payments thereunder (it being understood that the existing credit insurance policies issued by AIG and XL Specialty Insurance Company are satisfactory to the Administrative Agent) or (b) (i) an irrevocable 


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letter of credit from BMO or U.S. Bank, National Association or (ii) an irrevocable letter of credit satisfactory to the Administrative Agent in its Reasonable Credit Judgment (including, without limitation, as to the issuer or domestic confirming bank with respect thereto, and the form and substance thereof), in each case, that has been delivered to the Administrative Agent.
“Acceptable Foreign Jurisdiction” means each of Luxembourg, Italy, Spain, France, Sweden, Austria, Finland, Germany and Switzerland.
“Accommodation Payment” has the meaning specified in Section 11.19.
“Account” has the meaning specified in the UCC.
“Account Debtor” has the meaning given to such term in the UCC.
“Accounting Change” means changes in accounting principles adopted or implemented after the Closing Date required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board or, if applicable, the SEC.
“Acknowledgment Letter” means an acknowledgment, in form and substance reasonably acceptable to the Administrative Agent from an Account Debtor stating that (a) the applicable Borrower has pledged or assigned to the Collateral Agent a security interest in all of its rights to such Account and the right to receive payments thereunder and (b) the Account Debtor agrees to waive all rights of set-off and recoupment against the applicable Borrower and to make all payments in respect of such Account into a Control Account identified by the Administrative Agent or, following receipt of a written notice from the Administrative Agent that an Event of Default has occurred and is continuing, directly to an account of the Administrative Agent.
“Acquired Assets” has the meaning specified in the definition of “Permitted Acquisition.”
“Acquired Entity” has the meaning specified in the definition of “Permitted Acquisition.” 
“Activities” has the meaning specified in Section 9.09(b).
“Additional Lender” has the meaning specified in Section 2.15(b).
“Additional Pari passu Debt” has the meaning specified in the Term Loan Intercreditor Agreement.
“Administrative Agent” has the meaning specified in the preamble hereto.
“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 11.02, or such other address or account of the Administrative Agent as the Administrative Agent may from time to time notify in writing to the Borrowers and the Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in a form reasonably acceptable to the Administrative Agent.
“Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.


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“Agent Affiliate” has the meaning specified in Section 9.16(c).
“Agent Parties” has the meaning specified in Section 11.02(c).
“Agent’s Group” has the meaning specified in Section 9.09(b).
“Agents” means the Administrative Agent and the Collateral Agent.
“Agreement” has the meaning assigned in the preamble hereto.
“Anti-Corruption Laws” has the meaning specified in Section 5.17(c).
“Applicable Commitment Fee Rate” means (i) on any date on which Availability is less than 50% of the aggregate Commitments, 0.375% times the actual daily amount by which the aggregate Commitments of all Lenders exceed the sum of (A) the Outstanding Amount of Loans (excluding any Outstanding Amount of Swingline Loans) and (B) the Outstanding Amount of L/C Obligations, determined as of the last day of the immediately preceding fiscal quarter, or (ii) on any date on which Availability is equal to greater than or equal to 50% of the aggregate Commitments, 0.25% times the actual daily amount by which the aggregate Commitments of all Lenders exceed the sum of (A) the Outstanding Amount of Loans (excluding any Outstanding Amount of Swingline Loans) and (B) the Outstanding Amount of L/C Obligations, determined as of the last day of the immediately preceding fiscal quarter.
“Applicable Percentage” means, with respect to any Lender, the percentage (carried out to the ninth decimal place) of the Facility represented by such Lender’s Commitment at such time (or, if the Commitment of each Lender shall have been terminated or expired, then the percentage of Total Outstandings represented by the aggregate Outstanding Amount of such Lender’s Loans and L/C Obligations).  The initial Applicable Percentage of each Lender in respect of the Facility is set forth on Schedule 2.01 or in the Assignment and Acceptance pursuant to which such Lender becomes a party hereto, as applicable.
“Applicable Rate” means, as of any date of determination, a per annum rate equal to (a) for the period commencing on the Closing Date through the last day of the first full fiscal quarter ending after the Closing Date, (i) for Eurocurrency Rate Loans, 2.50% and (ii) for Base Rate Loans, 1.50% and (b) thereafter, the rate set forth below under the applicable Type of Loan and opposite the applicable Availability, based on the average daily Availability during the fiscal quarter most recently ended immediately preceding such date, as a percentage of the Maximum Revolving Credit:
	
				
	Category
	Average Quarterly Availability 
(% Of Maximum Revolving Credit)
	Eurocurrency Loans
	Base Rate Loans

	I
	Greater than or equal to 66%
	2.00%
	1.00%

	II
	Less than 66% and greater than or equal to 33%
	2.25%
	1.25%

	III
	Less than 33%
	2.50%
	1.50%






Any increase or decrease in the Applicable Rate resulting from a change in Availability shall become effective as of the first calendar day of each fiscal quarter.  Availability shall be calculated by the Administrative Agent based on the Borrowing Base Certificates of the Borrowers delivered pursuant to Section 6.02(f) in respect of the calendar month ending on the last day of such fiscal quarter.  Notwithstanding anything to the contrary set forth in this Agreement (including the then effective Availability), if the Borrowers shall fail to deliver such Borrowing Base Certificate within any of the time 


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periods specified in Section 6.02(f), the Applicable Rate from and including the 20th day after the end of the applicable month or, during a Liquidity Period, the 3rd Business Day after the end of the applicable week, as the case may be, to but not including the date the Borrowers deliver to the Administrative Agent such Borrowing Base Certificate shall equal the highest possible Applicable Rate provided for by this definition.
“Appraisal” means, as applicable, (i) the appraisal delivered to the Administrative Agent on or prior to the Closing Date, or (ii) any appraisal in form and substance reasonably satisfactory to the Administrative Agent in its Reasonable Credit Judgment delivered to the Administrative Agent pursuant to Section 6.10(b).
“Approved Appraiser” means Hilco or any other appraiser reasonably acceptable to the Administrative Agent in consultation with the Company.
“Approved Electronic Communications” means each notice, demand, communication, information, document and other material that any Loan Party is obligated to, or otherwise chooses to, provide to the Administrative Agent pursuant to any Loan Document or the transactions contemplated therein, including (a) any supplement to the Agreement, any joinder to any Collateral Document and any other written Contractual Obligation delivered or required to be delivered in respect of any Loan Document or the transactions contemplated therein and (b) any Financial Statement, financial and other report, notice, request, certificate and other information material; provided, however, that, “Approved Electronic Communication” shall exclude (i) any notice of Borrowing, conversion or continuation, and any other notice, demand, communication, information, document and other material relating to a request for a new, or a conversion of an existing, Borrowing, (ii) any notice pursuant to Section 2.06 and any other notice relating to the payment of any principal or other amount due under any Loan Document prior to the scheduled date therefor, (iii) all notices of any Default or Event of Default and (iv) any notice, demand, communication, information, document and other material required to be delivered to satisfy any of the conditions set forth in Article IV or any other condition to any Borrowing hereunder or any condition precedent to the effectiveness of this Agreement.
“Approved Electronic Platform” has the meaning specified in Section 9.16(a).
“Approved Field Examiner” means the Administrative Agent (or any of its Affiliates), KPMG, FTI or any other field examiner reasonably acceptable to the Administrative Agent in consultation with the Company.
“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.
“Arrangers” means Citigroup Global Markets Inc., BMO Capital Markets Corp. and Credit Suisse Securities (USA) LLC each in its capacity as joint lead arranger and joint bookrunner.
“Asset Sale” means any Disposition or series of related Dispositions of property by the Company or any of its Restricted Subsidiaries to any Person; provided that “Asset Sale” shall exclude any Disposition or series of related Dispositions with a fair market value of less than $5,000,000; provided, further, that “Asset Sale” shall exclude the sale or discount of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof.
“Assignment and Acceptance” means an assignment and acceptance entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b)), 


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and accepted by the Administrative Agent, substantially in the form of Exhibit F or any other form approved by the Administrative Agent.
“Assumption Agreement” means an assumption agreement substantially in the form of Exhibit K.
“Attributable Indebtedness” means, on any date, in respect of any Capital Lease Obligations of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.
“Audited Financial Statements” means the audited consolidated balance sheet of the Company and its Subsidiaries for the period from July 26, 2016 through December 31, 2016 and the related consolidated statements of income or operations, changes in shareholders’ equity and cash flows for such period in respect of the Company and its Subsidiaries.
“Auto-Extension Letter of Credit” has the meaning specified in Section 2.04(c)(iii).
“Auto-Reinstatement Letter of Credit” has the meaning specified in Section 2.04(c)(iv).
“Availability” means, at any time of determination, the Maximum Revolving Credit at such time minus the Total Outstandings at such time.
“Availability Period” means the period from and including the Closing Date to but not including the Termination Date.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“Bankruptcy Code” means The Bankruptcy Reform Act of 1978, as heretofore and hereafter amended, and codified as 11 U.S.C.  Section 101 et seq.
“Base Rate” means, for any day, in relation to a Loan in Dollars, a rate per annum equal to, the highest of (a) the rate of interest in effect for such day publicly announced from time to time by the Administrative Agent as its base rate in effect in New York, New York; each change in such prime rate shall be effective on the date such change is publicly announced as effective, (b) the Federal Funds Rate for such day plus 0.50% and (c) the Eurocurrency Rate applicable for an Interest Period of one month plus 1.00%.
“Base Rate Loan” means a Loan that bears interest based on the Base Rate.
“Beneficiary” means the Administrative Agent and the Arrangers, Lender and L/C Issuer.
“Blocked Account Agreement” means, with respect to any Deposit Account, Securities Account, Commodities Contract or Commodities Account of any Loan Party, an agreement among the Administrative Agent, the Term Loan Agent, such Loan Party (other than, in each case, any Excluded Account) and such depository bank, securities intermediary or commodity intermediary, as applicable, sufficient to grant “control” to the Administrative Agent (a) under 9-104 of the UCC with respect to any Deposit Account, 


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(b) under 9-106 of the UCC with respect to any Commodities Contract or Commodities Account or (c) under 8-106 of the UCC with respect to any Securities Account, in each case, subject to the Term Loan Intercreditor Agreement.
“Borrower Materials” has the meaning specified in Section 9.16(e).
“Borrower Obligations” means the Obligations of the Borrowers.
“Borrower Representative” has the meaning specified in Section 11.20.
“Borrowers” has the meaning specified in the preamble hereto.
“Borrowing” means any (a) borrowing consisting of simultaneous Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Lenders, (b) Swingline Loan or (c) Protective Advance.
“Borrowing Base” means, at any time:
(a)    the sum of:
(i)    eighty-five percent (85%) of the Eligible Billed Accounts of the Borrowers, plus
(ii)    seventy-five percent (75%) of the Eligible Unbilled Accounts of the Borrowers; provided, in no event shall the aggregate amount included in the Borrowing Base under this clause (ii) exceed the lesser of (A) $20,000,000 and (B) an amount equal to 50.0% of the aggregate amount of Eligible Billed Accounts and Eligible Unbilled Accounts included in the Borrowing Base under clauses (i) and (ii), respectively, at such time plus
(iii)    the lesser of (A) eighty-five percent (85%) of the remainder of Inventory Value of the Eligible Coal Inventory of the Borrowers and (B) eighty-five percent (85%) of the Net Orderly Liquidation Value of the Eligible Coal Inventory of the Borrowers; provided, in no event shall the aggregate amount included in the Borrowing Base under this clause (iii) exceed 50.0% of the aggregate amount of the Borrowing Base in effect at such time, plus
(iv)    one hundred percent (100%) of Qualified Cash of the Borrowers, minus
(b)    to the extent not included in the calculation of clauses (a)(i) through (a)(iv) above, inclusive, any Reserves then in effect.
For the avoidance of doubt, the specified percentage set forth in this definition of “Borrowing Base” will not be reduced without the consent of the Borrowers.
“Borrowing Base Certificate” means a certificate substantially in the form of Exhibit G (with such changes therein as may be required in writing by the Administrative Agent, in its Reasonable Credit Judgment, to reflect the components of, and Reserves against, the Borrowing Base from time to time), executed and certified as accurate and complete in all material respects by a Responsible Officer of the Company, which shall include detailed calculations as to the Borrowing Base as reasonably requested by the Administrative Agent.


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“Borrowing Base Collateral” means the Collateral of the Borrowers of the type included in clauses (a)(i) through (a)(v), inclusive, of the definition of “Borrowing Base”.
“Borrowing Notice” means a notice of a Borrowing, pursuant Section 2.02, which, if in writing, shall be substantially in the form of Exhibit A.
“Building” means a Building as defined in 12 CFR Chapter III, Section 339.2.
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located and, if such day relates to any Eurocurrency Rate Loan, means any such day on which dealings in deposits in Dollars are conducted by and between banks in the London interbank eurodollar market.
“Capital Expenditures” means any expenditure that, in accordance with GAAP, is or should be included in “purchase of property and equipment” or similar items, or which should otherwise be capitalized, reflected in the consolidated statement of cash flows of the Company and its Restricted Subsidiaries; provided that Capital Expenditure shall not include any expenditure (i) for replacements and substitutions for fixed assets, capital assets or equipment to the extent made with “Extraordinary Receipts” (as defined in the Term Loan Credit Agreement) invested pursuant to Section 2.06(b) of the Term Loan Credit Agreement or with “Net Proceeds” (as defined in the Term Loan Credit Agreement) invested pursuant to Section 2.03(b) of the Term Loan Credit Agreement or (ii) which constitute a Permitted Acquisition.
“Capital Lease Obligations” means of any Person as of the date of determination, the aggregate liability of such Person under Financing Leases reflected as liability on a balance sheet of such Person prepared in accordance with GAAP.
“Capital Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants or options to purchase any of the foregoing, but excluding any securities convertible into or exchangeable for shares of Capital Stock.
“Cash Collateralize” or “Cash Collateralization” means (a) to pledge to the Administrative Agent and deposit in a L/C Cash Collateral Account, for the benefit of the applicable L/C Issuer and the Lenders, as collateral for the L/C Obligations, cash or deposit account balances in an amount equal to 103% of the L/C Obligations pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and the applicable L/C Issuer (which documents are hereby consented to by the Lenders), or (b) to deliver to the applicable L/C Issuer a backstop letter of credit (in form and substance reasonably satisfactory to the L/C Issuer and the Administrative Agent, and issued by a U.S. commercial bank acceptable to each of such L/C Issuer and the Administrative Agent, in their commercially reasonable discretion).  Derivatives of such term have corresponding meanings.
“Cash Equivalents” means
		
	(a)
	U.S. Government Obligations or certificates representing an ownership interest in U.S. Government Obligations with maturities not exceeding two years from the date of acquisition,


		
	(b)
	(i) demand deposits, (ii) time deposits and certificates of deposit with maturities of two years or less from the date of acquisition, (iii) bankers’ acceptances with maturities not 




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exceeding two years from the date of acquisition, and (iv) overnight bank deposits, in each case with any bank or trust company organized or licensed under the laws of the United States or any state thereof (including any branch of a foreign bank licensed under any such laws) having capital, surplus and undivided profits in excess of $250,000,000 (or the foreign currency equivalent thereof) whose short-term debt is rated A-2 or higher by S&P or P-2 or higher by Moody’s,
		
	(c)
	commercial paper maturing within 364 days from the date of acquisition thereof and having, at such date of acquisition, ratings of at least A-1 by S&P or P-1 by Moody’s,


		
	(d)
	readily marketable direct obligations issued by any state, commonwealth or territory of the U.S. or any political subdivision thereof, in each case rated at least A-1 by S&P or P‐1 by Moody’s with maturities not exceeding one year from the date of acquisition,


		
	(e)
	bonds, debentures, notes or other obligations with maturities not exceeding two years from the date of acquisition issued by any corporation, partnership, limited liability company or similar entity whose long-term unsecured debt has a credit rate of A2 or better by Moody’s and A or better by S&P;


		
	(f)
	investment funds at least 95% of the assets of which consist of investments of the type described in clauses (a) through (e) above (determined without regard to the maturity and duration limits for such investments set forth in such clauses, provided that the weighted average maturity of all investments held by any such fund is two years or less),


		
	(g)
	fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (b) above and


		
	(h)
	in the case of a Restricted Subsidiary that is a Foreign Subsidiary, substantially similar investments, of comparable credit quality, denominated in the currency of any jurisdiction in which such Person conducts business.


“Cash Management Agreement” means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements.
“Cash Management Bank” means (a) a Lender or an Affiliate of a Lender that is a party to a Cash Management Agreement on the Closing Date or (b) any Person that, at the time it enters into a Cash Management Agreement, is a Lender or an Affiliate of a Lender, in each case, in its capacity as a party to such Secured Cash Management Agreement.
“Cash Management Obligations” means any and all obligations of the Company or any Restricted Subsidiary arising out of (a) the execution or processing of electronic transfers of funds by automatic clearing house transfer, wire transfer or otherwise to or from the deposit accounts of the Company and/or any Restricted Subsidiary, (b) the acceptance for deposit or the honoring for payment of any check, draft or other item with respect to any such deposit accounts, (c) any other treasury, deposit, disbursement, overdraft, and cash management services afforded to the Company or any Restricted Subsidiary, and (d) stored value card, commercial credit card and merchant card services.


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“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request or directive (whether or not having the force of law) by any Governmental Authority required to be complied with by any Lender.  For purposes of this definition, (x) the Dodd-Frank Act and any rules, regulations, orders, requests, guidelines and directives adopted, promulgated or implemented in connection therewith, and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to have been adopted, issued, promulgated or implemented after the Closing Date, but shall be included as a Change in Law only to the extent a Lender is imposing applicable increased costs or costs in connection with capital adequacy and other requirements similar to those described in Sections 3.04(a) and (b) generally on other similarly situated borrowers of loans under United States credit facilities.
“Change of Control” means:
(a)    prior to a Qualifying IPO, an event or series of events by which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934), directly or indirectly, of a majority or more of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Borrower;
(b)    after a Qualifying IPO, an event or series of events by which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934), directly or indirectly, of 35% or more of the equity securities of the Company entitled to vote for members of the board of directors or equivalent governing body of the Company on a fully-diluted basis; or
(c)    a “Change of Control” as defined in the Term Loan Credit Documents, in each case, as amended, restated, modified, replaced, or refinanced from time to time.
“Chattel Paper” has the meaning specified in the UCC.
“Chesapeake Bay Piers” is located at Curtis Bay Piers, 1910 Benhill Avenue, Baltimore, Maryland 21226.
“Clean Coal” means Coal having been extracted from a Mine and having been put through the washing process.
“Closing Date” means the first date on which all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 11.01.
“Coal” means (i) coal owned by the Company or any of its Subsidiaries, or coal that the Company or any of its Subsidiaries has the right to extract, in each case located on, under or within, or produced or 


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severed from the real property owned by, or leased or licensed to, the Company or any of its Subsidiaries and (ii) coal purchased by the Company or any of its Subsidiaries from a third party.
“Coal Act” means the Coal Industry Retiree Health Benefit Act of 1992, 26 U.S.C.  §§ 9701, et seq., as amended.
“Coal Inventory” means any Inventory consisting of Coal.
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Collateral” means, collectively, all of the real, personal and mixed property (including Equity Interests) in which Liens are purported to be granted pursuant to the Collateral Documents as security for all or any part of the Obligations (subject to exceptions contained in the Collateral Documents), in each case excluding any Excluded Assets.
“Collateral Agent” means Citibank, N.A., in its capacity as the collateral agent.
“Collateral Documents” means, collectively, the Security Agreement, the Mortgages and each of the mortgages, collateral assignments, security agreements, pledge agreements or other similar agreements delivered to the Administrative Agent pursuant to Section 6.12, and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties as security for the Obligations.
“Collateral Questionnaire” means a Collateral Questionnaire substantially in the form of Exhibit I or any other form approved by the Administrative Agent, as such Collateral Questionnaire may be amended, restated, supplemented or otherwise modified from time to time.
“Collateral Questionnaire Supplement” means a supplement to the Collateral Questionnaire substantially in the form of Exhibit J.
“Commercial Tort Claim” has the meaning specified in the UCC.
“Commitment” means, as to each Lender, the amount set forth under the caption “Commitment” opposite such Lender’s name on Schedule 2.01, or, as the case may be, opposite such caption in the Assignment and Acceptance pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.  The aggregate amount of the Commitments as of the Closing Date is $125,000,000.
“Commitment Fee” has the meaning specified in Section 2.10(a).
“Commodities Account” has the meaning specified in the UCC.
“Commodities Contact” has the meaning specified in the UCC.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C.  § 1 et seq.).
“Company” means Contura Energy, Inc., a Delaware corporation.
“Compliance Certificate” means a certificate substantially in the form of Exhibit E.


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“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated EBITDA” means, as of the last day of any period, Consolidated Net Income for such period plus, without duplication (i) consolidated interest expense, determined in accordance with GAAP; (ii) to the extent deducted in computing such Consolidated Net Income, the sum of all income, franchise or similar taxes (and less income tax benefits); (iii) depreciation, depletion, amortization (including, without limitation, amortization of intangibles, deferred financing fees and any amortization included in pension or other employee benefit expenses) and all other non-cash items reducing Consolidated Net Income (including, without limitation, write-downs and impairment of property, plant, equipment and intangibles and other long-lived assets and the impact of acquisition accounting) but excluding, in each case, non-cash charges in a period which reflect cash expenses paid or to be paid in another period); (iv) non-recurring restructuring costs, expenses and charges, including, without limitation, all business optimization costs and expenses, facility opening, pre-opening and closing and consolidation costs and expenses, advisory and professional fees and stay and retention bonuses; provided that the amount of non-recurring restructuring costs, expenses and charges permitted to be added back pursuant to this clause (iv) for a four-quarter period shall not exceed 20% of Consolidated EBITDA for such period (calculated before giving effect to such add-back); (v) any expenses, costs or charges related to any equity offering, Investment permitted under Section 7.02, acquisition, disposition, recapitalization or Indebtedness permitted to be incurred by the indenture (whether or not successful); (vi) all non- recurring or unusual losses, charges and expenses (and less all non-recurring or unusual gains); (vii) all non-cash charges and expenses; (viii) any debt extinguishment costs; (ix) any amount of asset retirement obligations expenses; (x) all Transaction Costs incurred in connection with the Transactions contemplated hereby; (xi) transaction costs, fees and expenses incurred during such period in connection with any acquisition or disposition not prohibited hereunder or any issuance of debt or equity securities by the Company or any of its Restricted Subsidiaries, in each case, for such expenses; and (xii) commissions, premiums, discounts, fees or other charges relating to performance bonds, bid bonds, appeal bonds, surety bonds, reclamation and completion guarantees and other similar obligations; provided that, with respect to any Restricted Subsidiary, such items will be added only to the extent and in the same proportion that the relevant Restricted Subsidiary’s net income was included in calculating Consolidated Net Income.  Notwithstanding the foregoing, Consolidated EBITDA for the fiscal quarters ended March 31, 2016 , June 30, 2016, September 30, 2016 and December 31, 2016 shall be deemed to be $24,500,000, $24,500,000, $39,400,000 and $103,500,000, respectively.
“Consolidated Net Income” means, for any period, the net income (or loss) attributable to the Company and its Restricted Subsidiaries (unless another Person is expressly indicated) for that period, determined in accordance with GAAP, excluding, without duplication, (a) noncash compensation expenses related to common stock and other equity securities issued to employees, (b) extraordinary or non-recurring gains and losses, (c) income or losses from discontinued operations or disposal of discontinued operations or costs and expenses associated with the closure of any mines (including any reclamation or disposal obligations), (d) any non-cash impairment charges or asset write-off resulting from the application of ASC 320 Investments-Debt and Equity Securities, ASC 323 Investments-Equity Method and Joint Ventures, ASC 350 Intangibles—Goodwill and Other and ASC 360 Property, Plant and Equipment and any future or similar ASC standards relating to impairment, (e) net unrealized gains or losses resulting in such period from non-cash foreign currency remeasurement gains or losses, (f) net unrealized gains or losses resulting in such period from the application ASC 815 Derivatives and Hedging, in each case, for such period, (g) non-cash charges including non-cash charges due to cumulative effects of changes in accounting principles, (h) any net income (or loss) for such period of any Person that is not a Restricted Subsidiary or is otherwise not a Subsidiary of such Person or that is accounted for by the equity method of accounting except to the extent of the amount of dividends or similar distributions paid in cash to the specified Person or a Restricted Subsidiary of the Person, and (i) the net income (but not loss) of any Restricted Subsidiary to the extent 


12
    







that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that net income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders (other than any restriction that has been waived or released); plus, without duplication, any cash dividends and/or distributions actually received by the Company or a Restricted Subsidiary from any Unrestricted Subsidiary and/or Joint Venture during such period to the extent not already included therein.
“Consolidated Net Tangible Assets” means, as of any particular time, the total of all the assets appearing on the most recent consolidated balance sheet prepared in accordance with GAAP of the Company and the Restricted Subsidiaries as of the end of the last fiscal quarter for which financial information is available (less applicable reserves and other properly deductible items) after deducting from such amount (i) all current liabilities, including current maturities of long-term debt and current maturities of obligations under Financing Leases (other than any portion thereof maturing after, or renewable or extendable at the option of the Company or the relevant Restricted Subsidiary beyond, twelve months from the date of determination); and (ii) the total of the net book values of all assets of the Company and its Restricted Subsidiaries properly classified as intangible assets under GAAP (including goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangible assets).
“Contingent Credit Support Agreement” means that certain loan agreement, dated as of July 26, 2016, by and between ANR, Inc., as borrower, and the Company, as lender (as amended, restated supplemented or otherwise modified from time to time).
“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled” have meanings correlative thereto.
“Control Account” has the meaning specified in Section 6.20(a).
“Controlled Subsidiary” means, with respect to any consent, waiver or right to terminate or accelerate the obligations under a Contractual Obligation, any Subsidiary that the Company directly or indirectly Controls for purposes of the provision of such consent, waiver or exercise of such right to terminate or accelerate the obligations under such Contractual Obligation.
“Copyright Security Agreement” means the Copyright Security Agreement, substantially in the form attached to the Security Agreement or such other form reasonably acceptable to the Administrative Agent and the Company, by certain Loan Parties in favor of the Collateral Agent, for the benefit of the Secured Parties.
“Credit Extension” means each of the following: (a) a Borrowing or (b) an L/C Credit Extension.
“Debt Rating” means, as of any date of determination, the monitored rating as determined by S&P and Moody’s of a Person’s non-credit-enhanced, senior unsecured long-term debt.
“Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, 


13
    







reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
“Default Rate” means, at any time:
(a)    when used with respect to any of the Obligations (other than Eurocurrency Rate Loans and Letter of Credit Fees), an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate applicable to Base Rate Loans (whether or not any Base Rate Loans are outstanding at such time) plus (iii) 2.00% per annum;
(b)    when used with respect to any Eurocurrency Rate Loan, an interest rate equal to (i) the interest rate (including any Applicable Rate) otherwise applicable to such Eurocurrency Rate Loan plus (ii) 2.00% per annum; and
(c)    when used with respect to Letter of Credit Fees, a rate equal to (i) the Applicable Rate applicable to Base Rate Loans (whether or not any Base Rate Loans are outstanding at such time) plus (ii) 2.00% per annum.
“Defaulting Lender” means, subject to Section 2.16(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrowers in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any L/C Issuer, the Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within two Business Days of the date when due, (b) has notified any of the Borrowers, the Administrative Agent, any L/C Issuer or the Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or any of the Borrowers, to confirm in writing to the Administrative Agent and the Borrowers that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrowers), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-in Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the Administrative Agent that a Lender is a 


14
    







Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.16(b)) upon delivery of written notice of such determination to the Borrowers, each L/C Issuer, the Swingline Lender and each Lender.
“Delivery at Possession Inventory” means all Eligible Coal Inventory in transit for delivery to a customer of the Borrowers for which title remains in such Borrower until delivery has occurred under the applicable customer contract, regardless of whether the Coal is physically located in the United States.
“Deposit Account” has the meaning specified in the UCC.
“Designated Amount” has the meaning specified Section 11.16(a).
“Designated Letters of Credit” means letters of credit issued with respect to Mine reclamation, workers’ compensation and other employee benefit liabilities.
“Designated Non-Cash Consideration” means the fair market value (as reasonably determined by the Company in good faith) of non-cash consideration received by the Company or any of its Restricted Subsidiaries in connection with a Disposition that is so designated as “Designated Non-Cash Consideration” minus the amount of cash or Cash Equivalents received in connection with a subsequent sale of such Designated Non-Cash Consideration.
“Designation Notice” has the meaning specified in Section 11.16(a).
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any real property leases, notes or accounts receivable or any rights and claims associated therewith.
“Disqualified Equity Interest” means Equity Interests that by their terms (or by the terms of any security into which such Equity Interests are convertible, or for which such Equity Interests are exchangeable, in each case at the option of the holder thereof) or upon the happening of any event (i) mature or are mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or are required to be redeemed or redeemable at the option of the holder for consideration other than Qualified Equity Interests, or (ii) are convertible at the option of the holder into Disqualified Equity Interests or exchangeable for Indebtedness, in each case of clauses (i) and (ii) prior to the date that is 91 days after the final Maturity Date hereunder, except, in the case of clauses (i) and (ii), if as a result of a change of control or asset sale, so long as any rights of the holders thereof upon the occurrence of such a change of control or asset sale event are subject to the prior payment in full of all Obligations.
“Disqualified Institution” means (i) any competitors of the Company identified by the Company to the Administrative Agent by name in writing from time to time and (ii) affiliates of the foregoing that are readily identifiable solely on the basis of similarity of their names; provided that (x) in the case of clauses (i) and (ii) herein, “Disqualified Institutions” shall not include any bona fide diversified debt fund or a diversified investment vehicle that is engaged in the making, purchasing, holding or otherwise investing in, acquiring or trading commercial loans, bonds and similar extensions of credit in the ordinary course; (y) neither Administrative Agent nor any Arranger shall have any responsibility for monitoring compliance with any provisions of this Agreement with respect to Disqualified Institutions and (z) updates to the Disqualified Institution schedule shall not retroactively invalidate or otherwise affect any (A) assignments or participations made to, (B) any trades entered into with or (C) information provided to any Person before 


15
    







it was designated as a Disqualified Institution.  It is acknowledged and agreed by the Company that the identity of Disqualified Institutions will be made available to the Lenders.
“Document” has the meaning specified in the UCC.
“Dodd-Frank Act” means the Dodd–Frank Wall Street Reform and Consumer Protection Act (Pub.L. 111-203, H.R. 4173) signed into law on July 21, 2010, as amended from time to time.
“Dollar” and “$” mean lawful money of the United States.
“Domestic Subsidiary” means any Subsidiary that is organized under the laws of the United States or any State thereof or the District of Columbia; provided that in no event shall any such Subsidiary that is a Subsidiary of a Foreign Subsidiary be considered a “Domestic Subsidiary” for purposes of the Loan Documents.
“DTA” means Dominion Terminal Associates, a Virginia partnership.
“DTA Coal Export Terminal” is located at Dominion Terminal Associates, 600 Harbor Rd, Pier 11, Newport News, Virginia 23607.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Accounts” means, at any time of determination, the aggregate amount of all Accounts due to any of the Borrowers; provided that unless otherwise approved from time to time in writing by the Administrative Agent in its Reasonable Credit Judgment, no Account shall constitute an Eligible Account if, without duplication:
(a)    except as provided in clause (w) of this definition, such Account does not arise from the sale of goods or the performance of services by any of the Borrowers in the ordinary course of its business;
(b)    such Account is contingent in any respect or for any reason, or the applicable Borrower’s right to receive payment with respect to such Account is subject to or contingent upon the satisfaction of any condition whatsoever (other than the preparation and delivery of an invoice);
(c)    the Account Debtor with respect to such Account (i) has or has asserted a right of set-off, offset, deduction, defense, dispute, or counterclaim against any of the Borrowers (unless such Account Debtor has entered into a written agreement reasonably satisfactory to the Administrative Agent to waive such set-off, offset, deduction, defense, dispute, or counterclaim 


16
    







rights), (ii) has disputed its liability (whether by chargeback or otherwise) or made any claim with respect to the Account or any other Account of any of the Borrowers which has not been resolved, in each case of clause (i) and (ii), without duplication, only to the extent of the amount of such actual or asserted right of set-off, or the amount of such dispute or claim, as the case may be or (iii) is also a creditor or supplier of any of the Borrowers or any of its respective Subsidiaries (but only to the extent of such Borrower’s or such Subsidiary’s obligations to such Account Debtor from time to time), in each case, unless such Account Debtor has executed any non-offset agreement in form and substance reasonably satisfactory to the Administrative Agent;
(d)    such Account is not a true and correct statement of bona fide indebtedness incurred in the amount of the Account for the sale of goods to or services rendered for the applicable Account Debtor;
(e)    except in the case of any Unbilled Accounts, an invoice, in form and substance consistent with such Borrower’s credit and collection policies, or otherwise reasonably acceptable to the Administrative Agent, has not been sent to the applicable Account Debtor in respect of such Account within 30 days of such sale of Coal or provision of services (including Accounts identified as inactive, warranty or otherwise not attributable to an Account Debtor);
(f)    such Account (i) is not owned by a Borrower or (ii) is not subject to the first priority, valid and perfected security interest and Lien of Administrative Agent, for and on behalf of itself and the Lenders;
(g)    such Account is the obligation of an Account Debtor that is (i) a Borrower or any of its Affiliates, or any of their respective directors, officers, employees or agents or (ii) a natural Person;
(h)    such Account (i) is subject to a partial payment plan (other than a Permitted Partial Payment Plan), (ii) was not paid in full, and any Borrower created a new receivable for the unpaid portion of such Account or (iii) constitutes or is subject to chargebacks, debit memos and other adjustments for unauthorized deductions, without duplication, only to the extent of the amount of such actual or asserted chargeback, debit memo and other adjustment for unauthorized deductions;
(i)    such Account is created on “cash on delivery” terms, or on extended terms and is due and payable more than 90 days from the invoice date thereof;
(j)    such Account (i) is not paid within 60 days following the original due date or 90 days following the original invoice date or (ii) has been written off the books of any of the Borrowers or has otherwise been designated on such books as uncollectible;
(k)    the Account Debtor obligated upon such Account suspends business, makes a general assignment for the benefit of creditors or fails to pay its debts generally as they come due;
(l)    any Account Debtor obligated upon such Account is a debtor or a debtor in possession under any bankruptcy law or any other federal, state or foreign (including any provincial or territorial) receivership, insolvency relief or any other Debtor Relief Law, unless the payment with respect to such Account is supported by Acceptable Credit Support;
(m)    with respect to such Account (or any other Account due from the applicable Account Debtor), in whole or in part, a check, promissory note, draft, trade acceptance, or other 


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instrument for the payment of money has been received, presented for payment and returned uncollected for any reason;
(n)    such Account is the obligation of an Account Debtor from whom 50% or more of the face amount of all Accounts owing by such Account Debtor are ineligible under clause (i) of this definition;
(o)    such Account is one as to which the Collateral Agent’s Lien attached thereon, for the benefit of itself and the other Secured Parties, is not a valid first priority perfected Lien;
(p)    Accounts as to which any of the representations or warranties in the Loan Documents with respect to such Accounts are untrue or inaccurate in any material respect (or, with respect to representations or warranties that are qualified by materiality, any of such representations and warranties are untrue or inaccurate);
(q)    such Account is evidenced by a judgment, Instrument or Chattel Paper, other than Instruments or Chattel Paper that are held by any of the Borrowers or that have been delivered to the Administrative Agent;
(r)    such Account is payable in any currency other than Dollars;
(s)    the Account Debtor with respect to such Account (i) is not organized under laws of the United States, any state thereof, the District of Columbia, Canada or any state or province thereof or the United Kingdom or (ii) is not located, resident or domiciled in, or does not maintain its chief executive office in, the United States, Canada or the United Kingdom; unless, in each case,
(i)    (x) the jurisdiction of organization of such Account Debtor and its location, residence, domicile and jurisdiction of its chief executive office is an Acceptable Foreign Jurisdiction, (y) the Account Debtor has an Investment Grade Rating and (z) the Administrative Agent has received an Acknowledgment Letter from the Account Debtor with respect to such Account; or
(ii)    payment with respect to such Account is supported by Acceptable Credit Support; or
(iii)    (x) the jurisdiction of organization of such Account Debtor and its location, residence, domicile and jurisdiction of its chief executive office is an Acceptable Foreign Jurisdiction and (y) the Account Debtor has an Investment Grade Rating; provided that the aggregate amount of all Accounts which may be Eligible Accounts pursuant to clause (iii) of this clause (s) shall not exceed $7,500,000 in the aggregate;
(t)    such Account is the obligation of an Account Debtor that is the United States government or a political subdivision thereof, or department, agency or instrumentality thereof, unless the applicable Borrower has duly assigned its rights to payments of such Account to the Administrative Agent pursuant to, and has other complied with, the Federal Assignment of Claims Act of 1940, as amended, and any other applicable state, county or municipal Law restricting assignment thereof, which assignments and any related documents and filings, shall be satisfactory to the Administrative Agent in its Reasonable Credit Judgment;


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(u)    such Account has been redated, extended, compromised, settled, adjusted or otherwise modified or discounted, except discounts or modifications that are granted by a Borrower in the ordinary course of business and that are reflected in the calculation of the Borrowing Base;
(v)    the Account Debtor with respect to such Account is located in a state of the United States of America requiring the filing of a notice of business activities report or similar report in order to permit a Borrower to seek judicial enforcement in such state of payment of such Account, unless such Borrower has qualified to do business in such state or has filed a notice of business activities report or equivalent report for the then-current year or if such failure to file and inability to seek judicial enforcement is capable of being remedied without any material delay or material cost;
(w)    such Account was acquired or originated by a Person acquired in a Permitted Acquisition or other Investment (until such time as the Administrative Agent has completed a customary due diligence investigation as to such Accounts and such Person, which investigation may, in the Reasonable Credit Judgment of the Administrative Agent, include an appraisal and/or field examination, and the Administrative Agent is satisfied with the results thereof in its Reasonable Credit Judgment);
(x)    such Account (i) represents a sale on a bill-and-hold, guaranteed sale, sale and return, ship-and-return, sale on approval, consignment or other similar basis or (ii) was made pursuant to any other agreement providing for repurchases or return of any merchandise which has been claimed to be defective or otherwise unsatisfactory;
(y)    any such Account that is the obligation of an Account Debtor that is, to the knowledge of a Responsible Officer of the Company or the Administrative Agent, a Sanctioned Person;
(z)    any such Account that is subject to a restriction on assignment that is enforceable against third parties and that impairs the Collateral Agent’s Lien on such Account or the Administrative Agent’s ability to enforce the Account;
(aa) such Account is subject to any security deposit (to the extent received from the applicable Account Debtor), progress payment (other than pursuant to a Permitted Partial Payment Plan), retainage or other similar advance made by or for the benefit of the applicable Account Debtor, in each case to the extent thereof;
(bb) (i) any portion of an Account that was invoiced in advance of goods or services provided, (ii) such Account was invoiced twice or more, or (iii) the associated revenue has not been earned; or
(cc) except in the case of any Unbilled Accounts, the goods giving rise to such Account have not been shipped and/or title has not been transferred to the Account Debtor, or the Account represents a progress-billing or otherwise does not represent a complete sale; for purposes hereof, “progress-billing” means any invoice for goods sold or leased or services rendered under a contract or agreement pursuant to which the Account Debtor’s obligation to pay such invoice is conditioned upon the completion by a Borrower of any further performance under the contract or agreement;
In determining the amount of any Account, the face amount of such Account shall be reduced by, without duplication, to the extent not reflected in such face amount, (A) the amount of all accrued and actual discounts, claims, credits or credits pending, promotional program allowances, price adjustments, 


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finance charges or other allowances (including any amount that any of the Borrowers may be obligated to rebate to a customer pursuant to the terms of any written agreement or understanding), (B) the aggregate amount of all limits and deductions provided for in this definition and elsewhere in the Loan Documents, if any, and (C) the aggregate amount of all cash received in respect of such Account but not yet applied by a Borrower to reduce the amount of such Account.
Notwithstanding the foregoing, if at any time the aggregate amount of all Accounts of any single Account Debtor and its Affiliates exceeds 25.0% of the aggregate amount of all Eligible Accounts, then the Accounts of such Account Debtor in excess of such percentage shall not be deemed “Eligible Accounts,” unless such Account is fully or partially supported by Acceptable Credit Support, except that any excess amounts will be Eligible Accounts to the extent such excess is supported by Acceptable Credit Support.
“Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund that is, in the case of this clause (c), approved by each L/C Issuer; and (d) any other Person (other than a natural person) that is, in the case of this clause (d), approved by (i) the Administrative Agent, (ii) the Swingline Lender, (iii) each L/C Issuer and (iv) unless an Event of Default under Section 8.01(a), (f) or (g)    has occurred and is continuing, the Borrowers (each such approval not to be unreasonably withheld or delayed, provided that the Borrowers shall be deemed to have consented to the assignment to such Person if the Borrowers have not responded within 10 Business Days of a request for such approval); provided, further, that (i) in each case, unless an Event of Default has occurred and is continuing, an Eligible Assignee shall include only a Lender, an Affiliate of a Lender or another Person, which, through its Lending Offices, is capable of lending to the Borrower, without the imposition of any additional Indemnified Taxes and would not, at the time of such assignment, result in the Borrower becoming liable to pay any additional amount to such Person or any Governmental Authority pursuant to Section 3.01 or Section 3.04 and (ii) in no event shall any Borrower or its Subsidiaries, Defaulting Lender or Disqualified Institution be an “Eligible Assignee”.
“Eligible Billed Account” means, at any time of determination, each Eligible Account of the Borrowers for which an invoice has been sent to the applicable Account Debtor with respect to such Eligible Account.
“Eligible Coal Inventory” means any Coal Inventory of the Borrowers that constitutes Eligible Inventory.
“Eligible Inventory” means, at any time of determination, without duplication, the Inventory Value of all Coal Inventory of the Borrowers at such time; provided that unless otherwise from time to time approved in writing by the Administrative Agent in its Reasonable Credit Judgment, no Inventory shall constitute Eligible Inventory if, without duplication:
(a)    the applicable Borrower does not have good and valid title to such Inventory, free and clear of any Lien (other than Permitted Liens);
(b)    the Administrative Agent’s Lien on such Inventory, for the benefit of itself and the other Secured Parties, is not a valid first priority perfected Lien;
(c)    any of the representations or warranties in the Loan Documents with respect to such Inventory are untrue or inaccurate in any material respect (or, with respect to representations or warranties that are qualified by materiality, any of such representations and warranties are untrue or inaccurate);


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(d)    such Inventory (i) is either not finished goods (other than raw or unprocessed coal) or which constitutes work-in-process, packaging and shipping material or bill-and-hold goods, (ii) constitutes goods held on consignment (including any goods consigned at the location of a customer, supplier or contractor, but that are accounted for in the Inventory balance of the Borrowers) or (iii) constitutes goods which are not of a type held for sale in the ordinary course of business;
(e)    other than Delivery at Possession Inventory, such Inventory is in-transit to or from a location not leased or owned by a Borrower (it being understood that the Borrowers shall provide their best estimate of the value of all such Inventory, which estimate is to be reflected in the Borrowing Base Certificate), other than any Coal Inventory that is physically within the United States and in-transit between the applicable coal mine and (A) DTA Coal Export Terminal, (B) the Lamberts Point Terminal, (C) Chesapeake Bay Piers or (D) Three Rivers;
(f)    such Inventory is not located in the United States of America, other than Delivery at Possession Inventory;
(g)    except for Inventory located at any of the locations listed in clauses (A)-(D) of clause (e) above, such Inventory is located at any location leased by any of the Borrowers, unless
(i)    the lessor has delivered to the Administrative Agent a Landlord Lien Waiver as to such location or (ii) a Rent Reserve has been established by the Administrative Agent in its Reasonable Credit Judgment (measured as of the most recent practicable date);
(h)    except for Inventory located at any of the locations listed in clauses (A)-(D) of clause (e) above, such Inventory is located in any third-party storage facility or is otherwise in the possession of a warehouseman or bailee (including any repairman) and is not evidenced by a Document, unless (i) such third party, warehouseman or bailee has delivered to the Administrative Agent a Landlord Lien Waiver and such other documentation as the Administrative Agent may reasonably require or (ii) a Rent Reserve has been established by the Administrative Agent in its Reasonable Credit Judgment;
(i)    such Inventory is being processed or manufactured offsite (unless such processor or manufacturer has delivered to the Administrative Agent a Landlord Lien Waiver and such other documentation as the Administrative Agent may reasonably require);
(j)    such Inventory was acquired or originated by a Person acquired in a Permitted Acquisition or other Investment (until such time as the Administrative Agent has completed a customary due diligence investigation as to such Inventory and such person, which investigation may, in the Reasonable Credit Judgment of the Administrative Agent, include an inventory appraisal and/or field examination, and the Administrative Agent is satisfied with the results thereof in its Reasonable Credit Judgment);
(k)    such Inventory consists of assets other than Coal;
(l)    any such Inventory, to the extent of any portion of the Inventory Value thereof that is attributable to intercompany profit among the Borrowers or any of their respective Affiliates (it being understood and agreed that the applicable Borrower shall provide its best estimate of such Inventory Value to the Administrative Agent, which Inventory Value shall be approved by the Administrative Agent and reflected in the most recent Borrowing Base Certificate); or


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(m)    any such Inventory as to which any of the Borrowers takes an unrecorded book to physical inventory reduction based on the average of the most recent 12 months of physical inventory adjustments.
“Eligible Unbilled Account” means, at any time of determination, without duplication, each Unbilled Account of the Borrowers which constitutes an Eligible Account at such time; provided that unless otherwise approved from time to time in writing by the Administrative Agent in its Reasonable Credit Judgment, no Unbilled Account shall constitute an Eligible Unbilled Account unless the entire amount of the relevant Coal Inventory pertaining to such Unbilled Account has been loaded into the Account Debtor’s mode of transportation or has departed, in the case of vessels and barges, as applicable, or when delivered to the Account Debtor and when risk of loss or title of such Coal Inventory has transferred to the Account Debtor.
“Environmental Laws” means any and all applicable current and future Laws relating to (a) protection of natural resources, wildlife and the environment or to emissions, discharges, releases or threatened releases of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or wastes into the environment including ambient air, surface, water, ground water, or land, (b) human health and safety as affected by Hazardous Materials, and (c) mining operations and activities to the extent relating to environmental protection or reclamation, including the federal Surface Mining Control and Reclamation Act (30 U.S.C.  1201-1328) and all analogous state laws and regulations, provided that “Environmental Laws” do not include any laws relating to worker or retiree benefits, including benefits arising out of occupational diseases.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Environmental Permits” means any and all permits, licenses, registrations, notifications, exemptions and any other authorization required under any applicable Environmental Law.
“Equity Interests” means, with respect to any Person, all of the shares of Capital Stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of Capital Stock of (or other ownership or profit interests in) such Person, and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination (but excluding any debt security that is convertible into, or exchangeable for, Equity Interests).
“ERISA” means the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time, the regulations promulgated thereunder and any successor statute.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Company within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the failure to meet the minimum funding standards of Sections 412 or 430 of the Code or Sections 302 or 303 of ERISA 


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with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Code or Section 302(c) of ERISA) or the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (c) a determination that any Pension Plan is, or is expected to be, in “at risk” status (as defined in Section 430 of the Code or Section 303 of ERISA); (d) a determination that any Multiemployer Plan is, or is expected to be, in “critical” or “endangered” status under Section 432 of the Code or Section 305 of ERISA; (e) a withdrawal by the Company or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (f) a complete or partial withdrawal by the Company or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (g) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (h) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (i) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Company or any ERISA Affiliate; (j) receipt from the IRS of notice of the failure of any Pension Plan (or any other Plan intended to be qualified under Section 401(a) of the Code) to qualify under Section 401(a) of the Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Code; (k) the imposition of a Lien pursuant to Section 430(k) of the Code or Section 303(k) of ERISA or a violation of Section 436 of the Code with respect to any Pension Plan; or (l) the occurrence of any Foreign Plan Event.
“Equipment” has the meaning specified in the UCC.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Eurocurrency Base Rate” means, (i) with respect to any Interest Period for any Eurocurrency Rate Loan, the rate per annum, determined by the Administrative Agent to be the offered rate for deposits in Dollars for the applicable Interest Period, equal to the ICE Benchmark Administration Limited LIBOR Rate (“ICE LIBOR”), as published by Reuters (or another commercially available source providing quotations of ICE LIBOR as designated by Administrative Agent from time to time) as of 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period and (ii) if the rate referenced in the preceding clause (i) is not available at such time for any Interest Period, the rate per annum equal to the Interpolated Screen Rate for delivery on the first day of such Interest Period, determined as of approximately 11:00 a.m.  (London time) two (2) London Business Days prior to the first day of such Interest Period, or (iii) if the rates referenced in the preceding clauses (i) and (ii) are not available at such time for such Interest Period, the rate per annum equal to (x) the Screen Rate or (y) if the rate referenced in the preceding clause (x) is not available at such time for such Interest Period, the Interpolated Screen Rate, in each case with a term equivalent to such Interest Period quoted for delivery on the most recent London Business Day preceding the first day of such Interest Period for which such rate is available (which London Business Day shall be no more than seven (7) London Business Days prior to the first day of such Interest Period.
“Eurocurrency Liabilities” has the meaning assigned to that term in Regulation D of the Federal Reserve Board.
“Eurocurrency Rate” means, with respect to any Interest Period for any Eurocurrency Rate Loan, an interest rate per annum equal to the rate per annum obtained by dividing (a) the Eurocurrency Base 


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Rate by (b)(i) a percentage equal to 100% minus (ii) the reserve percentage applicable two Business Days before the first day of such Interest Period under regulations issued from time to time by the Federal Reserve Board for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve System in New York City with respect to liabilities or assets consisting of or including Eurocurrency Liabilities (or with respect to any other category of liabilities that includes deposits by reference to which the Eurocurrency Rate is determined) having a term equal to such Interest Period; provided, if any such rate is less than zero, the Eurocurrency Base Rate shall be deemed to be zero.
“Eurocurrency Rate Loan” means a Loan that bears interest at a rate based on the Eurocurrency Rate.
“Event of Default” has the meaning specified in Section 8.01.
“Excluded Accounts” means a collective reference to (a) any deposit account, securities account, commodities account, cash collateral account or other similar account of any Loan Party (and all cash, cash equivalents and other securities or investments held therein) exclusively used for all or any of the following purposes: (i) payroll, (ii) employee benefits, (iii) worker's compensation, (iv) securing liabilities in respect of bank guarantees, credit card or purchase card facilities or similar merchant account arrangements incurred in the ordinary course of business, (v) taxes, (vi) third party escrow, (vii) customs, (viii)    other fiduciary purposes, or (ix) compliance with legal requirements (including pledges required in favor of Governmental Authorities), to the extent such legal requirements prohibit the granting of a Lien thereon and (b) other deposit accounts, security accounts, commodities accounts, cash collateral accounts or other similar accounts of any Loan Party (and all cash, cash equivalents and other securities or investments held therein) with an average balance for all accounts excluded by this clause (b) not in excess of $100,000 in the aggregate for all such accounts.
“Excluded Assets” means
(a)    motor vehicles and other assets subject to certificates of title where the net book value of any such motor vehicle or other such asset individually is less than $500,000,
(b)    commercial tort claims where the amount of the net proceeds claimed is less than $3,000,000,
(c)    (i) any Contractual Obligation and any leased or licensed asset under a Contractual Obligation or asset financed pursuant to a purchase money financing Contractual Obligation or Capital Lease Obligation, in each case that is the direct subject of such Contractual Obligation (so long as such Contractual Obligation is not entered into for purposes of circumventing or avoiding the collateral requirements of this Agreement), in each case only for so long as the granting of a security interest therein (x) would be prohibited by, cause a default under or result in a breach of such Contractual Obligation (unless the Company or any Controlled Subsidiary may unilaterally waive it) or would give another Person (other than the Company or any Controlled Subsidiary) a right to terminate or accelerate the obligations under such Contractual Obligation or to obtain a Lien to secure obligations owing to such Person (other than the Company or any Controlled Subsidiary) under such Contractual Obligation (in each case, except to the extent any such prohibition is unenforceable after giving effect to applicable anti- assignment provisions of the UCC) or (y) would require obtaining the consent of any Person (other than the Company or any Controlled Subsidiary) or applicable Governmental Authority, except to the extent that such consent has already been obtained or (ii) any asset the granting of a security interest therein in favor of the Secured Parties would be prohibited by any applicable Requirement of Law (other 


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than any Organizational Document) (except to the extent such prohibition is unenforceable after giving effect to applicable anti-assignment provisions of the UCC, other than proceeds thereof, the assignment of which is expressly deemed effective under the UCC notwithstanding such prohibitions),
(d)    those assets with respect to which, in the reasonable judgment of the Administrative Agent and the Company, the costs of obtaining or perfecting such a security interest are excessive in relation to the benefits to be obtained by the Secured Parties therefrom or would result in materially adverse tax consequences to the Company or its Subsidiaries as reasonably determined by the Company in consultation with the Administrative Agent,
(e)    (i) any real property and leasehold rights and interests in real property other than Material Real Property, and (ii) leasehold rights and interests in real property leased from any Governmental Authority,
(f)    any “intent-to-use” application for registration of a Trademark (as defined in the Security Agreement) filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C.  § 1051, prior to the filing and acceptance of a “Statement of Use” pursuant to Section 1(d) of the Lanham Act or an “Amendment to Allege Use” pursuant to Section 1(c) of the Lanham Act with respect thereto,
(g)    (i) any Equity Interest that is Voting Stock of a first-tier Foreign Subsidiary or FSHCO in excess of 65% of the Voting Stock of such Subsidiary, (ii) any Equity Interests of captive insurance subsidiaries and not-for-profit subsidiaries, (iii) any Equity Interests in any Joint Venture or any other non-wholly owned Subsidiary, and (iv) any Equity Interests in the direct parent of any Joint Venture or non-wholly owned Subsidiary to the extent that a pledge thereof would be prohibited by, cause a default under or result in a breach of, or would give another Person (other than the Company or any Controlled Subsidiary) a right to terminate, under any Organizational Document, shareholders, Joint Venture or similar agreement applicable to such owned Subsidiary or Joint Venture; and
(h)    the Excluded Accounts;
(i)    the Excluded Wyoming Property; and
(j)    all right, title and interest of Contura Energy Services LLC under (A) the Trust Agreement (N731BP) dated July 26, 2016 between Bank of Utah, as owner trustee, and Contura Energy Services LLC, as Operator and (B) the Aircraft Operating Agreement dated July 26, 2016 between Contura Energy Services, LLC and Bank of Utah, as owner trustee;
provided that the Collateral shall include the replacements, substitutions and proceeds of any of the foregoing unless such replacements, substitutions or proceeds also constitute Excluded Assets.
“Excluded Hedging Obligations” means, with respect to any Loan Party, (a) as it relates to all or a portion of the Guarantee of such Loan Party of Hedging Obligations, any Hedging Obligation if, and to the extent that, such Hedging Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Loan Party becomes effective with respect to such Hedging Obligation or (b) as it relates to all or a portion of the grant by such Loan Party of a security interest to secure any Hedging Obligation (or secure any Guarantee in respect thereof), any Hedging 


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Obligation if, and to the extent that, the grant by such Loan Party of a security interest to secure such Hedging Obligation (or secure any Guarantee in respect thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the grant of such security interest becomes effective with respect to such Hedging Obligation.  If a Hedging Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Hedging Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.  As used in this definition, “Hedging Obligation” shall mean, with respect to any Loan Party, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) branch profits Taxes or Taxes imposed on or measured by its overall net income (however denominated), and franchise taxes, in each case (i) imposed as a result of the Recipient being organized under the laws of, or having its principal office in or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, United States federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than in the case of an assignee pursuant to a request by the Borrower Representative under Section 11.13) or (ii) such Lender changes its lending office, except in each case, to the extent that, pursuant to Section 3.01(a), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure or inability to comply with Section 3.01(e) and (d) any Taxes imposed under FATCA.
“Excluded Wyoming Property” means, any property rights and interests in real and personal property to the extent that such property is pledged to the State of Wyoming (or any governmental agency thereof) to satisfy bonding obligations under reclamation laws.  As of the Closing Date, Schedule 1.01(b) lists all Excluded Wyoming Property.
“Existing Senior Notes” means the senior secured first lien notes of Borrower due August 2021 issued pursuant to the Existing Senior Notes Indenture.
“Existing Senior Notes Indenture” means the Indenture, dated as of July 26, 2016, among the Company, the guarantors party thereto, the Wilmington Trust, National Association, as Trustee and Collateral Agent (as defined therein) (as amended, restated, supplemented or otherwise modified prior to the Closing Date).
“Facility” has the meaning specified in the introductory statement hereto.
“Facility Increase” has the meaning specified in Section 2.15.
“Facility Increase Amount” has the meaning specified in Section 2.15.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered 


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into pursuant to Section 1471(b)(1) of the Code and any laws implementing an intergovernmental agreement with respect to the foregoing.
“Federal Funds Rate” means, for any period, a fluctuating interest rate per annum 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 that 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 it.
“Federal Reserve Board” means the Board of Governors of the United States Federal Reserve System, or any successor thereto.
“Fee Letter” means the Agency Fee Letter, dated as of the date hereof between the Company, Citibank, N.A.  and Citigroup Global Markets Inc.
“Financial Statements” means the financial statements of the Company and its Subsidiaries, on a consolidated basis, delivered in accordance with Section 6.01.
“Financing Lease” means any lease of property, real or personal, the obligations of the lessee in respect of which are required in accordance with GAAP to be capitalized on a balance sheet of the lessee; provided that, any operating lease that is required to be treated as a capital lease in accordance with GAAP as a result of any Accounting Change shall not be deemed a Financing Lease for purposes of this Agreement.
“First Priority” means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that such Lien ranks first in priority to all other Liens, other than Liens permitted under clauses (b), (c), (d), (e), (g), (i), (j), (m), (p), (r), (s) and (u) (solely with respect to any Term Loan Priority Collateral) of Section 7.01.
“Fixed Charge Coverage Ratio” shall mean, with respect to any period, the ratio of (a) Consolidated EBITDA of the Company and its Restricted Subsidiaries for such period, minus non- financed Capital Expenditures (including Capital Expenditures financed with the proceeds of any Loans) paid or payable currently in cash by the Company or any of its Subsidiaries for such period to (b) the Fixed Charges of the Company and its Restricted Subsidiaries during such period.
“Fixed Charges” shall mean, for any period, the sum of, without duplication: (a) all scheduled amortization payments of principal paid or due and payable during such period by the Company or any of its Restricted Subsidiaries in respect of any Indebtedness under clause (a) of the definition thereof (including scheduled payments of the principal portion of Capital Lease Obligations), plus (b) consolidated interest expense (including the interest component of payments under Capital Lease Obligations) of the Company and its Restricted Subsidiaries for such period, plus (c) the aggregate amount of Federal, state, local and foreign income Taxes and franchise and similar Taxes (net of any benefit or credit) included in the determination of Consolidated Net Income paid in cash during such period, plus (d) all Restricted Payments of type described in clause (a) of the definition of Restricted Payments payable in cash during such period to any Person other than the Company and its Restricted Subsidiaries.  For the first three fiscal quarters of the Company ending after the Closing Date, Fixed Charges shall be calculated on an annualized basis for the period commencing on the Closing Date and ending on the last day of the fiscal quarter ending on such date.
“Fixtures” has the meaning specified in the UCC.


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“Foreign Lender” means, with respect to the Borrowers, any Lender that is organized under the laws of a jurisdiction other than the United States, any state thereof or the District of Columbia.
“Foreign Plan” means any employee benefit plan, program, policy, arrangement or agreement maintained or contributed to by any Loan Party or any of their respective Subsidiaries with respect to employees employed outside the United States and paid through a non-United States payroll.
“Foreign Plan Event” means, with respect to any Foreign Plan, (a) the existence of unfunded liabilities in excess of the amount permitted under any applicable law, or in excess of the amount that would be permitted absent a waiver from a Governmental Authority, (b) the failure to make the required contributions or payments, under any applicable law, within the time permitted by Law for such contributions or payments, (c) the receipt of a notice from a Governmental Authority relating to the intention to terminate any such Foreign Plan or to appoint a trustee or similar official to administer any such Foreign Plan, or alleging the insolvency of any such Foreign Plan, (d) the incurrence of any liability by any Loan Party under applicable law on account of the complete or partial termination of such Foreign Plan or the complete or partial withdrawal of any participating employer therein, in each case, which would reasonably be expected to have a Material Adverse Effect, or (e) the occurrence of any transaction with respect to a Foreign Plan that is prohibited under any applicable law and that would reasonably be expected to result in the incurrence of any liability by any Loan Party, or the imposition on any Loan Party of any fine, excise tax or penalty with respect to a Foreign Plan resulting from any noncompliance with any applicable law, in each case which would reasonably be expected to have a Material Adverse Effect.
“Foreign Subsidiary” means a Subsidiary that is organized under the laws of a jurisdiction other than the United States or any State thereof or the District of Columbia and any Subsidiary thereof.
“FRB” means the Board of Governors of the Federal Reserve System of the United States.  “Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to any L/C Issuer, such Defaulting Lender’s Ratable Portion of the outstanding L/C Obligations with respect to Letters of Credit issued by such L/C Issuer other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof; and (b) with respect to the Swingline Lender, such Defaulting Lender’s Ratable Portion of outstanding Swingline Loans made by the Swingline Lender other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders in accordance with the terms hereof.
“FSHCO” means any Domestic Subsidiary formed or acquired on or after the Closing Date substantially all of the assets of which consist of the Equity Interests of one or more Foreign Subsidiaries.
“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.
“GAAP” means generally accepted accounting principles, which are applicable to the circumstances as of the date of determination.  The sources of accounting principles and the framework for selecting the principles used in the preparation of financial statements of nongovernmental entities that are presented in conformity with GAAP in the United States, are set forth in the Financial Accounting Standards Board’s Accounting Standards Codification.
“General Intangible” has the meaning set forth in Article 9 of the UCC.  “Goods” has the meaning specified in the UCC.


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“Governmental Authority” means the government of the United States or any other nation, or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra- national bodies such as the European Union or the European Central Bank).
“Guarantee” means, as to any Person (the “guaranteeing person”), any obligation of (a) the guaranteeing person or (b) another Person (including, without limitation, any bank under any letter of credit) to the extent the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation in order to induce the creation of such obligation, in either case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other obligations (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, reimbursement obligations under letters of credit and any obligation of the guaranteeing 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 (1) for the purchase or payment of any such primary obligation or (2) 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, 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 owner of any such primary obligation against loss in respect thereof; provided, however, that the term Guarantee shall not include (i) ordinary course performance guarantees by any Loan Party of the obligations (other than for the payment of borrowed money) of any other Loan Party, (ii) endorsements of instruments for deposit or collection in the ordinary course of business and (iii) indemnification or reimbursement obligations under or in respect of Surety Bonds or Designated Letters of Credit.  The amount of any Guarantee obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrowers in good faith.  The term “Guarantee” as a verb has a corresponding meaning.
“Guarantors” means any Restricted Subsidiary that is a wholly-owned Domestic Subsidiary; provided that such term shall not include (a) any FSHCO or (b) any Domestic Subsidiary that is a Subsidiary of any Foreign Subsidiary.  The Guarantors as of the Closing Date are the Subsidiaries of the Company listed on Schedule 1.01(a).  For the avoidance of doubt, no Foreign Subsidiary now owned or hereafter formed or acquired shall be a Guarantor.  To the extent the Company desires to include assets of a Guarantor in the Borrowing Base, such Guarantor shall become a Borrower by executing an Assumption Agreement.
“Hazardous Materials” means (i) any explosive or radioactive substances or wastes, (ii) any hazardous or toxic substances, materials or wastes, defined or regulated as such in or under, or that would reasonably be expected to give rise to liability under, any applicable Environmental Law, including, without limitation, asbestos, polychlorinated biphenyls, urea-formaldehyde insulation, gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products, and (iii) any coal ash, coal combustion by-products or waste, boiler slag, scrubber residue or flue desulphurization residue (“CCR”), except that CCR beneficially re-used shall not be considered a Hazardous Material.
“Hedge Bank” means (a) a Lender or an Affiliate of a Lender that is a party to a Secured Hedge Agreement on the Closing Date or (b) any Person that, at the time it enters into a Secured Hedge Agreement, 


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is a Lender or an Affiliate of a Lender, in each case, in its capacity as a party to such Secured Hedge Agreement.
“Hedging Agreement” means (i) any interest rate swap agreement, interest rate cap agreement, interest rate future agreement, interest rate collar agreement, interest rate hedge agreement or other similar agreement or arrangement designed to protect against or mitigate interest rate risk, (ii) any foreign exchange forward contract, currency swap agreement, futures contract, option contract, synthetic cap or other agreement or arrangement designed to protect against or mitigate foreign exchange risk or (iii) any commodity or raw material, including coal, futures contract, commodity hedge agreement, option agreement, any actual or synthetic forward sale contract or other similar device or instrument or any other agreement designed to protect against or mitigate raw material price risk (which shall for the avoidance of doubt include any forward purchase and sale of coal for which full or partial payment is required or received).
“Hedging Obligations” means all debts, liabilities and obligations of the Company or any Restricted Subsidiary in respect of any Hedging Agreement.
“Hedging Reserve” means any reserve established by the Administrative Agent in its Reasonable Credit Judgment in respect of Hedging Obligations based upon the credit exposure of any Hedge Banks to a Borrower in respect of Hedging Obligations, as notified by such Hedge Bank in writing to the Administrative Agent.
“Hedging Termination Value” means, in respect of any one or more Hedging Agreement, after taking into account the effect of any valid netting agreement relating to such Hedging Agreements, (a) for any date on or after the date such Hedging Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Hedging Agreements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedging Agreements (which may include a Lender, the Administrative Agent or any Affiliate of a Lender or the Administrative Agent) (it being understood that any such termination values and marked-to-market values shall take into account any assets posted as collateral or security for the benefit of a party to the Hedging Agreement).
“Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under the laws applicable to any Lender which are presently in effect or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum nonusurious interest rate than applicable laws now allow.
“Honor Date” shall have the meaning specified in Section 2.04(d)(i).
“Increase Effective Date” has the meaning specified in Section 2.15.
“Increased Reporting Period” means any period commencing on any day that (i) any Event of Default shall have occurred and be continuing or (ii) Availability shall be less than the greater of (w) $15,625,000 and (x) 12.5% of the Maximum Revolving Credit, which period shall terminate on the date on which no Event of Default shall be continuing and Availability has exceeded the greater of the greater of (y) $15,625,000 and (z) 12.5% of the Maximum Revolving Credit for a period of 30 consecutive calendar days.
“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:


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(a)    all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments (other than any obligations in respect of performance bonds bid bonds, appeal bonds, surety bonds, reclamation bonds and completion guarantees, bank guarantees and similar contingent obligations or with respect to worker’s compensation benefits);
(b)    all obligations of such Person arising under letters of credit, bankers’ acceptances or similar instruments issued for the account of such Person (solely to the extent such letters of credit, bankers’ acceptances or other similar instruments have been drawn and remain unreimbursed);
(c)    net obligations of such Person under any Hedging Agreement;
(d)    all obligations of such Person to pay the deferred purchase price of property or services (other than (i) trade accounts payable and accrued expenses incurred in the ordinary course of business, (ii) obligations under federal coal leases, (iii) obligations under coal leases and (iv) obligations for take- or-pay arrangements);
(e)    indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
(f)    Capital Lease Obligations; and
(g)    all Guarantees of such Person in respect of any of the foregoing Indebtedness of any other Person (but excluding any performance and completion Guarantees of such Person);
provided that in no event shall Indebtedness include (i) in connection with the purchase by the Company or any of its Restricted Subsidiaries of any business, post-closing payment adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the closing unless such payments are required under GAAP to appear as a liability on the balance sheet (excluding the footnotes), provided, that at the time of closing, the amount of any such payment is not determinable and, to the extent such payment thereafter becomes fixed and determined, the amount is paid within 30 days thereafter; (ii) deferred or prepaid revenues; (iii) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the respective seller, (iv) asset retirement obligations, or (v) obligations (other than obligations with respect to Indebtedness for borrowed money or other Indebtedness evidenced by loan agreements, bonds, notes or debentures or similar instruments or letters of credit (solely to the extent such letters of credit or other similar instruments have been drawn and remain unreimbursed) (or, without duplication, reimbursement agreements in respect thereof)) related to surface rights under an agreement for the acquisition of surface rights for the production of coal reserves in the ordinary course of business in a manner consistent with historical practice of the Company and its Subsidiaries.  Indebtedness shall be calculated without giving effect to the effects of Accounting Standards Codification Topic 815 “Derivatives and Hedging” and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose under this Agreement as a result of accounting for any embedded derivatives created by the terms of such Indebtedness.
The amount of any net obligation under any Hedging Agreement on any date shall be deemed to be the Hedging Termination Value thereof as of such date.  The amount of any Indebtedness issued with original issue discount shall be deemed to be the face amount of such Indebtedness less the remaining 


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unamortized portion of the original issue discount of such Indebtedness.  The amount of any Capital Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date.  The amount of any indebtedness of a Joint Venture secured by a Lien on property owned or being purchased by the Company or its Restricted Subsidiaries as of any date shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the indebtedness that is secured by such Lien and (b) the maximum amount for which the Company or its Restricted Subsidiaries may be liable (which may be determined with reference to the fair market value of the property securing such indebtedness as reasonably determined by the Company in good faith) pursuant to the terms of such indebtedness.  Except as set forth in the sentence immediately above, the amount of indebtedness of any Joint Venture, which is attributable to the Company or any Restricted Subsidiary shall be deemed to equal the amount of indebtedness that would be attributable to the Company or any Restricted Subsidiary in accordance with GAAP.
“Indemnified Liabilities” has the meaning specified in Section 11.04.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document, and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Indemnitees” has the meaning specified in Section 11.04(b).
“Instrument” has the meaning specified in the UCC.
“Intellectual Property” has the meaning specified in the Security Agreement.
“Intercreditor Agreements” means each of (a) the Term Loan Intercreditor Agreement and (b) the Junior Lien Intercreditor Agreements.
“Interest Payment Date” means, (a) as to any Eurocurrency Rate Loan, the last day of each Interest Period applicable to such Loan, the Termination Date, and in the case of a Eurocurrency Rate Loan with an Interest Period of more than three months’ duration, each day that would have been an Interest Payment Date had successive Interest Periods of three months’ duration been applicable to such Loan; and (b) as to any Base Rate Loan, the last Business Day of each March, June, September and December and the Termination Date.
“Interest Period” means, as to each Eurocurrency Rate Loan, the period commencing on the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan and ending on the date one, two, three or six months (or, to the extent agreed to by all of the Lenders, 12 months) thereafter, as selected by a Borrower in its Borrowing Notice or Notice of Conversion or Continuation, as applicable; provided that:
(a)    any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(b)    any Interest Period 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 Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(c)    no Interest Period shall extend beyond the Maturity Date.


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“Interpolated Screen Rate” means, for any Interest Period with respect to any Eurocurrency Rate Loan, the rate which results from interpolating on a linear basis between (a) the applicable Screen Rate for the period next longer than the length of such Interest Period and (b) the applicable Screen Rate for the period next shorter than the length of such Interest Period.
“Inventory” has the meaning specified in the UCC.
“Inventory Value” means, at any time of determination, with respect to any Coal Inventory of any of the Borrowers, the value reflected in the general ledger of the Company, calculated in accordance with GAAP.
“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests or other securities of another Person, (b) a loan, advance (excluding intercompany liabilities incurred in the ordinary course of business in connection with the cash management operations of the Company and its Subsidiaries) or capital contribution to, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or Joint Venture interest in such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit.  For purposes of covenant compliance, the amount of any Investment shall be (i) the amount actually invested, as determined immediately prior to the time of each such Investment, without adjustment for subsequent increases or decreases in the value of such Investment minus (ii) the amount of dividends or distributions received in connection with such Investment and any return of capital and any payment of principal received in respect of such Investment that in each case is received in cash or Cash Equivalents.
“Investment Grade Rating” means a Debt Rating of at least BBB- by S&P and Baa3 from Moody’s.
“Investment Property” has the meaning specified in the UCC.  “IP Rights” has the meaning specified in Section 5.18.
“IP Security Agreements” means any Copyright Security Agreement, any Trademark Security Agreement and any Patent Security Agreement.
“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc.  (or such later version thereof as may be in effect at the time of issuance).
“Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by any L/C Issuer and the Borrowers (or any Subsidiary) or in favor of such L/C Issuer and relating to any such Letter of Credit.
“Joint Venture” means any Person (a) other than a Subsidiary in which the Company or its Subsidiaries hold an ownership interest or (b) which is an unincorporated joint venture of the Company or any Subsidiary.
“Junior Collateral Trustee” means the Person acting as Junior Collateral Trustee pursuant to any Junior Intercreditor Agreement, together with its successors and assigns in such capacity.


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“Junior Lien Indebtedness” means any Indebtedness (other than the Term Loan Facility) that is secured by a junior Lien to the Lien securing the Obligations and that was permitted to be incurred and so secured hereunder.
“Junior Lien Intercreditor Agreement” means an intercreditor agreement to be entered into between the Term Loan Agent, the Collateral Agent and the Junior Collateral Trustee that sets forth the relative priority of the Priority Liens and the Term Loan Liens (as such term is defined in such Junior Lien Intercreditor Agreement), on the one hand, and the Junior Liens (as such term is defined in such Junior Lien Intercreditor Agreement), on the other hand, as the same may be amended, restated, supplemented or otherwise modified from time to time.
“L/C Advance” means, with respect to each Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage.
“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Borrowing.
“L/C Cash Collateral Account” means the account established by, and under the sole dominion and control of, the Administrative Agent maintained with the Administrative Agent and designated as the “Contura L/C Cash Collateral Account”.
“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
“L/C Issuer” means, collectively, each of Citibank, N.A., BMO Harris Bank N.A.  and Credit Suisse AG, Cayman Islands Branch in its respective capacity as issuer of Letters of Credit hereunder, and any other Lender or Lenders reasonably acceptable to the Company and the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned) that agree to act as L/C Issuer, and any successor issuer of Letters of Credit hereunder.
“L/C Obligations” means as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts with respect to Letters of Credit, including all L/C Borrowings plus the aggregate amount of Letter of Credit Fees then due and payable.
“L/C Sublimit” means, at any time, (a) with respect to all of the L/C Issuers taken as a whole, $80,000,000 and (b) with respect to each L/C Issuer individually, an amount allocated to such L/C Issuer by the Administrative Agent, at the request of the Borrowers, and accepted by such L/C Issuer in its sole discretion.  As of the Closing Date, the L/C Sublimit of each L/C Issuer referred to in clause (b) above shall be the amount set forth opposite such L/C Issuer’s name on Schedule 2.01.
“Lamberts Point Terminal” is located at Norfolk Southern Lamberts Point Pier 6 Coal Terminal, 2200 Redgate Avenue, Norfolk, Virginia 23507.
“Landlord Lien Waiver” means any landlord lien waiver, estoppel, warehouseman waiver or other collateral access or similar letter or agreement.
“Laws” means, as to any Person, collectively, all international, foreign, Federal, state and local laws, statutes, treaties, rules, regulations, ordinances, codes, and determinations of arbitrators or courts or other Governmental Authorities, 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.


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“Lender” means each financial institution listed on Schedule 2.01, as well as any Person that becomes a “Lender” hereunder pursuant to Section 11.06(b).  Unless the context requires otherwise, the term “Lender” shall include the Swingline Lender.
“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire or Assignment and Acceptance by which it became a Lender or such other office or offices as a Lender may from time to time notify the Borrowers and the Administrative Agent.
“Letter of Credit” means any letter of credit issued pursuant to Section 2.04(a).
“Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by any L/C Issuer.
“Letter of Credit Expiration Date” means the day that is the earlier of (a) 12 months after its date of issuance (or such longer period as may be agreed by the applicable L/C Issuer and the applicable Borrower) and (b) 5 Business Days prior to the Maturity Date; provided that any Letter of Credit may provide for renewal thereof for additional periods of up to 12 months (which in no event shall extend beyond the date referred to be in clause (b) above, except to the extent Cash Collateralized pursuant to arrangements reasonably acceptable to the relevant L/C Issuer).
“Letter of Credit Fee” has the meaning specified in Section 2.04(j).
“Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Financing Lease having substantially the same economic effect as any of the foregoing).
“Liquidity Period” means any period commencing on any day that (i) any Event of Default shall have occurred and be continuing or (ii) Availability shall be less than the greater of (w) $12,500,000 and (x) 10.0% of the Maximum Revolving Credit, which period shall terminate on the date on which no Event of Default shall be continuing and Availability has exceeded the greater of (y) $12,500,000 and (z) 10.0% of the Maximum Revolving Credit for a period of 30 consecutive calendar days.
“Loan” has the meaning specified in Section 2.01.
“Loan Documents” means, collectively, (a) this Agreement, (b) the Notes, (c) the Collateral Documents, (d) each Issuer Document, (e) each Secured Hedge Agreement, (f) each Secured Cash Management Agreement and (g) any Intercreditor Agreement.
“Loan Parties” means, collectively, the Borrowers and each Guarantor.
“Material Adverse Effect” means a material adverse effect upon (a) the business, assets, operations, property or financial condition of the Company and its Restricted Subsidiaries taken as a whole, (b) the ability of the Borrowers and the Guarantors, taken as a whole, to perform their obligations under the Loan Documents or (c) the validity or enforceability of the Loan Documents or the material rights or remedies of the Administrative Agent, the Collateral Agent, the Arrangers, the L/C Issuers or the Lenders thereunder.


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“Material Leased Real Property” means any Mine or other real property, in each case, subject to a lease with a Loan Party, as lessee, with annual minimum royalties, rents or any similar payment obligations, in excess of $500,000 in the most recently ended fiscal year.
“Material Owned Real Property” means any Mine or other real property, in each case, owned or acquired in fee by any Loan Party having a fair market value in excess of $1,000,000.
“Material Real Property” means (a) the Material Leased Real Property and (b) the Material Owned Real Property, as the context may require; provided that Material Real Property shall not include (x) the Excluded Wyoming Property, (y) the Excluded Assets or (z) any leasehold interests of a Loan Party in commercial real property constituting offices of the Company and its Subsidiaries.
“Maturity Date” means the date that is five (5) years after the Closing Date; provided that individual Lenders may agree in their sole discretion to extend the maturity of their Commitments under the Facility upon the request of the Borrowers and without the consent of any other Lender; provided, further, that if such date is not a Business Day, the Maturity Date shall be the next succeeding Business Day.
“Maximum Revolving Credit” means, at any time, the lesser of (i) the Borrowing Base at such time and (ii) the aggregate amount of Commitments in effect at such time.
“Mine” means any mining complex and its associated Reserve Area in respect of any of the real properties in the United States in which any Loan Party holds an ownership, leasehold or other interest, including any excavation or opening into the earth now or hereafter made from which coal or other minerals are or can be extracted.
“Mining Laws” means any and all applicable federal, state, local and foreign statutes, laws, regulations, guidance, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or other governmental restrictions or common law causes of action relating to mining operations and activities.
“Mining Laws” shall include but not be limited to, the MSHA, the Mineral Lands Leasing Act of 1920, the Federal Coal Leasing Amendments Act, the Surface Mining Control and Reclamation Act, all other land reclamation and use statutes and regulations relating to Coal mining, the Federal Coal Mine Health and Safety Act, the Black Lung Act and the Coal Act, the Mine Safety and Health Act and the Occupational Safety and Health Act, each as amended, and their state and local counterparts or equivalents.
“Moody’s” means Moody’s Investors Service, Inc.  and any successor thereto.
“Money” has the meaning specified in the UCC.
“Mortgage” means a deed of trust, trust deed, deed to secure debt, mortgage, leasehold mortgage and leasehold deed of trust in form and substance reasonably satisfactory to the Administrative Agent, in each case as amended, restated, supplemented or otherwise modified from time to time.
“MSHA” means the Federal Mine Safety and Health Act of 1977, 30 U.S.C.  §§ 801 et seq., as amended.
“Multiemployer Plan” means any employee pension benefit plan (as defined in Section 3(2) of ERISA) of the type described in Section 4001(a)(3) of ERISA, to which the Company or any ERISA 


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Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
“Net Cash Proceeds” means, with respect to any Disposition by the Borrowers or any of their respective Subsidiaries, the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such Disposition (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) over (ii) the sum of (A) the principal amount, premium or penalty, if any, interest, breakage costs and other amounts on any Indebtedness that is secured by the asset subject to such Disposition and that is required to be repaid or paid in connection with such transaction (other than Indebtedness under, or that is secured by, the Loan Documents), (B) the reasonable out-of-pocket fees and expenses (including reasonable out-of-pocket attorneys’ fees, accountants’ fees, investment banking fees, survey costs, title insurance premiums and related search and recording charges, transfer Taxes, other customary expenses and brokerage, consultant and other customary fees) incurred by the Borrowers or such Subsidiary in connection with such transaction, (C) Taxes reasonably estimated to be actually payable within two years of the date of the relevant transaction as a result of any gain recognized in connection therewith; provided that if the amount of any estimated Taxes pursuant to subclause (C) exceeds the amount of Taxes actually required to be paid in cash in respect of such Disposition, the aggregate amount of such excess shall constitute Net Cash Proceeds and (D) any reserve for adjustment in respect of (x) the sale price of such asset established in accordance with GAAP and (y) any liabilities associated with such asset and retained by the Borrowers after such Disposition thereof, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction.
“Net Insurance/Condemnation Proceeds” means an amount equal to: (a) any cash payments or proceeds (including Cash Equivalents) received by the Company or any of its Subsidiaries (i) under any casualty insurance policy in respect of a covered loss thereunder of any assets of the Company or any of its Subsidiaries or (ii) as a result of the taking of any assets of the Company or any of its Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of any such assets to a purchaser with such power under threat of such a taking, minus (b) (i) any actual out- of-pocket costs incurred by the Company or any of its Subsidiaries in connection with the adjustment, settlement or collection of any claims of the Company or any of its Subsidiaries in respect thereof, (ii) payment of the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than the Loans) that is secured by a Lien on the assets in question and that is required to be repaid under the terms thereof as a result of such loss, taking or sale, (iii) in the case of a taking, the reasonable out-of-pocket costs of putting any affected property in a safe and secure position, (iv) any selling costs and out-of-pocket expenses (including reasonable broker’s fees or commissions, legal fees, transfer and similar Taxes and the Company’s good faith estimate of income Taxes paid or payable) in connection with any sale or taking of such assets as referred to in clause (a)(ii) of this definition and (v) any amounts provided as a reserve, in accordance with GAAP, against any liabilities under any indemnification obligations or purchase price adjustments associated with any sale or taking of such assets as referred to in clause (a)(ii) of this definition (provided that to the extent and at the time any such amounts are released from such reserve, such amounts shall constitute Net Insurance/Condemnation Proceeds).
“Net Orderly Liquidation Value” means an amount, expressed as a percentage of the cash proceeds of Inventory that could be obtained in an orderly liquidation (net of all liquidation expenses, costs of sale, operating expenses and retrieval and related costs), as determined pursuant to the most recent Appraisal delivered to the Administrative Agent.


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“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
“Non-Extension Notice Date” has the meaning specified in Section 2.04(c)(iii).
“Non-Recourse Debt” means Indebtedness (a) as to which neither the Company nor any of its Restricted Subsidiaries (i) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness) other than a non-recourse pledge of the Equity Interests of any Unrestricted Subsidiary to the extent such Equity Interests do not constitute Collateral, (ii) is directly or indirectly liable (as a guarantor or otherwise) other than by virtue of a non-recourse pledge of the Equity Interests of any Unrestricted Subsidiary to the extent such Equity Interests do not constitute Collateral, or (iii) constitutes the lender; (b) no default with respect to which (including any rights that the holders thereof may have to take enforcement action against any Unrestricted Subsidiary) would permit (upon notice, lapse of time or both) any holder of any other Indebtedness (other than the Obligations) of the Company or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity; and (c) as to which the lenders thereunder will not have any recourse to the Equity Interests or assets of the Company or any of its Restricted Subsidiaries (other than solely the Equity Interests of any Unrestricted Subsidiary to the extent such Equity Interests do not constitute Collateral).
“Non-Reinstatement Deadline” has the meaning specified in Section 2.04(c)(iv).
“Nonconsenting Lender” has the meaning specified in Section 11.13.
“Note” means a promissory note made by the Borrowers in favor of a Lender evidencing Loans made by such Lender, substantially in the form of Exhibit C.
“Notice of Conversion or Continuation” means a notice by the Borrowers to (i) convert Base Rate Loans or any portion thereof to Eurocurrency Rate Loans or (ii) at the end of any applicable Interest Period, convert Eurocurrency Rate Loans or any portion thereof into Base Rate Loans or to continue such Eurocurrency Rate Loans or any portion thereof for an additional Interest Period, in each case, substantially in the form of Exhibit B.
“Notification” shall have the meaning given to such term in clause (s) of the definition of “Eligible Accounts.”
“Obligations” means all advances to, and debts, liabilities and obligations of, any Loan Party arising under any Secured Cash Management Agreement, Secured Hedge Agreement, Loan Document or otherwise with respect to any Loan, Letter of Credit, Swingline Loan or Protective Advance whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising, including interest and fees that accrue after the commencement by or
against any Loan Party of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.  Notwithstanding anything to the contrary herein, the “Obligations” shall not include any Excluded Hedging Obligations.
“Obligee Guarantor” shall have the meaning given to such term in Section 10.08.
“Organizational Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any 


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non-US jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, Joint Venture, trust or other form of business entity, the partnership, Joint Venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“Other Connection Taxes” means with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising solely from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing, or similar Taxes that arise from any payment made under, from the execution, delivery, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any other Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment at the request of the Borrower Representative pursuant to Section 11.13).
“Outstanding Amount” means (i) with respect to Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Loans occurring on such date; (ii) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrowers of Unreimbursed Amounts, (iii) with respect to Swingline Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments of such Swingline Loans occurring on such date and (iv) with respect to Protective Advances on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments of such Protective Advances on such date.
“Overnight Rate” means, for any day, the greater of (a) the Federal Funds Rate and (b) an overnight rate determined by the Administrative Agent or any L/C Issuer, as the case may be, in accordance with banking industry rules on interbank compensation.
“Owner Trust” means Bank of Utah, not in its individual capacity but solely as owner trustee under the Trust Agreement N731BP dated July 26, 2016.
“Parent Entity” means any Person that is a direct or indirect parent company (which may be organized as a partnership) of the Company.
“Participant” has the meaning specified in Section 11.06(d).
“Participant Register” has the meaning specified in Section 11.06(d).
“Patent Security Agreement” means the Patent Security Agreement, substantially in the form attached to the Security Agreement or such other form reasonably acceptable to the Administrative Agent and the Company, by certain Loan Parties in favor of the Collateral Agent, for the benefit of the Secured Parties.


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“PATRIOT Act” has the meaning specified in Section 5.17.
“Payment Conditions” mean, at any time of determination, with respect to any applicable Indebtedness, Investment (including any Permitted Acquisition), Restricted Payment or Restricted Debt Payment (each such event or transaction, a “Permitted Transaction”), the satisfaction of each of the following conditions:
(a)    no Event of Default has occurred and is continuing or would immediately result from the consummation of such Permitted Transaction; and
(b)    the Borrowers shall have demonstrated compliance at the time of consummation of such Permitted Transaction with either clause (i) or clause (ii) below, in each case, as set forth in the most recent Borrowing Base Certificate delivered pursuant to Section 6.02(f):
(i)    (x) pro forma Availability immediately after giving effect to such Permitted Transaction (taking into account any Credit Extensions made to finance such Permitted Transaction) and (y) pro forma average Availability for the 30-day period immediately preceding the consummation of such Permitted Transaction (assuming such Permitted Transaction (and any Credit Extensions made to finance such Permitted Transaction) shall have occurred on the first day of such period), shall be, in each case, no less than the greater of (1) 12.5% of the Maximum Revolving Credit and (2) $15,625,000 and (z) the Fixed Charge Coverage Ratio, on a Pro Forma Basis, as of the last day of the most recently ended Test Period (after giving pro forma effect to such Permitted Transaction and each other Permitted Transaction that has occurred since the beginning of such Test Period) shall not be less than 1.00 to 1.00, or
(ii)    both (x)(1) pro forma Availability immediately after giving effect to such Permitted Transaction (taking into account any Credit Extensions made to finance such Permitted Transaction) and (2) pro forma average Availability for the 30-day period immediately preceding the consummation of such Permitted Transaction (assuming such Permitted Transaction (and any Credit Extensions made to finance such Permitted Transaction) shall have occurred on the first day of such period), shall be, in each case, no less than the greater of (x) 17.5% of the Maximum Revolving Credit and (y) $21,875,000.
“PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA, or any successor thereto.
“Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by the Company or any ERISA Affiliate or to which the Company or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years.
“Permitted Acquisition” means any transaction or series of related transactions for the direct or indirect acquisition by the Company or any of its Restricted Subsidiaries of all or substantially all the assets of a Person or line of business or division of such person (referred to herein as the “Acquired Assets”), or all of the Equity Interests (other than directors’ qualifying shares) of a Person (referred to herein as the “Acquired Entity”) or merger or consolidation of any other combination with any other Person; provided that


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(a)    the Acquired Entity or the Acquired Assets, as applicable, shall be engaged in a Similar Business;
(b)    both before and after giving effect thereto no Default or Event of Default shall have occurred and be continuing;
(c)    the Payment Conditions shall have been satisfied at the time of closing of such Permitted Acquisition on a Pro Forma Basis (after giving effect to any Credit Extensions and other Indebtedness incurred to finance such Permitted Acquisitions);
(d)    the Company shall comply, and shall cause the Acquired Entity, if any, to comply, with the applicable provisions of Section 6.12 and Section 6.16; provided that, in respect of Acquired Entities that are organized outside of the United States or will otherwise not become Loan Parties or Acquired Assets located outside of the United States or that will not be acquired by Loan Parties, the aggregate amount of such Investments, when taken together with Indebtedness of a non-Loan Party owing to a Loan Party pursuant to Section 7.03(f) (other than Indebtedness subject to the second proviso of such Section) and Disqualified Equity Interests issued by a non-Loan Party to a Loan Party pursuant to Section 7.03(f) and Investments in non- Loan Parties made pursuant to Section 7.02(j), shall not in the aggregate exceed the greater of $40,000,000 and 8% of Consolidated Net Tangible Assets;
(e)    such Permitted Acquisition is not consummated in connection with a “hostile takeover” or proxy fight or similar transaction; and
(f)    such Permitted Acquisition and all transactions related thereto are consummated in all material respects in accordance with applicable Laws.
“Permitted Asset Swap” means the substantially concurrent purchase and sale, trade-in or exchange of equipment, real property or any other property of a nature or type that is used or useful in a Similar Business or a combination of such equipment, real property or any other property and cash or Cash Equivalents between the Company or any of its Restricted Subsidiaries and another Person; provided that the fair market value of the equipment, real property or any other property received is at least as great as the fair market value of the equipment, real property or other property being traded-in or exchanged as determined by the Company reasonably and in good faith; provided that any shortfall may be treated as an Investment and shall constitute an Investment for purposes of calculating compliance with Section 7.02.
“Permitted Liens” has the meaning specified in Section 7.01.
“Permitted Partial Payment Plan” means a partial payment plan whereby (a) an Account Debtor is required to pre-pay a portion of the total sale amount prior to shipment, with the remaining sale amount billed following shipment; (b) an Account Debtor that is using a letter of credit as Acceptable Credit Support for a shipment makes an initial partial payment, followed by a subsequent payment for the remaining balance due on the shipment; or (c) an Account Debtor is billed for a shipment at a provisional selling price, and a subsequent billing is made after the final selling price has been determined.
“Permitted Real Estate Encumbrances” means the following encumbrances which do not, in any case, individually or in the aggregate, materially detract from the value of any Mine subject thereto or interfere with the ordinary conduct of the business or operations of any Loan Party as presently conducted on, at or with respect to such Mine and as to be conducted following the Closing Date: (a) encumbrances customarily found upon real property used for mining purposes in the applicable jurisdiction in which the applicable real property is located to the extent such encumbrances would be permitted or granted by a 


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prudent operator of mining property similar in use and configuration to such real property (e.g., surface rights agreements, wheelage agreements and reconveyance agreements); (b) rights and easements of (i) owners of undivided interests in any of the real property where the applicable Loan Party or Subsidiary owns less than 100% of the fee interest, (ii) owners of interests in the surface of any real property where the applicable Loan Party or Subsidiary does not own or lease such surface interest, (iii) lessees, if any, of coal or other minerals (including oil, gas and coal bed methane) where the applicable Loan Party or Subsidiary does not own such coal or other minerals, and (iv) lessees of other coal seams and other minerals (including oil, gas and coal bed methane) not owned or leased by such Loan Party or Subsidiary; (c) with respect to any real property in which the Company or any Restricted Subsidiary holds a leasehold interest, terms, agreements, provisions, conditions, and limitations (other than royalty and other payment obligations which are otherwise permitted hereunder) contained in the leases granting such leasehold interest and the rights of lessors thereunder (and their heirs, executors, administrators, successors, and assigns), subject to any amendments or modifications set forth in any landlord consent delivered in connection with a Mortgage; (d) farm, grazing, hunting, recreational and residential leases with respect to which the Company or any Restricted Subsidiary is the lessor encumbering portions of the real properties to the extent such leases would be granted or permitted by, and contain terms and provisions that would be acceptable to, a prudent operator of mining properties similar in use and configuration to such real properties; (e) royalty and other payment obligations to sellers or transferors of fee coal or lease properties to the extent such obligations constitute a lien not yet delinquent; (f) rights of others to subjacent or lateral support and absence of subsidence rights or to the maintenance of barrier pillars or restrictions on mining within certain areas as provided by any mining lease, unless in each case waived by such other person; (g) rights of repurchase or reversion when mining and reclamation are completed, (h) zoning, building, land use and other similar laws and all Liens (other than monetary Liens) that do not materially interfere with the ordinary conduct of the business or operations of any Loan Party as presently conducted, (i) Liens on the property of the Company or any of its Subsidiaries, as a tenant under a lease or sublease entered into in the ordinary course of business by such Person, in favor of the landlord under such lease or sublease, securing the tenant’s performance under such lease or sublease, as such Liens are provided to the landlord under applicable law and not waived by the landlord and (j) leases, subleases, licenses and rights-of-use granted to others incurred in the ordinary course of business and that do not materially and adversely affect the use of the property encumbered thereby for its intended purpose.
“Permitted Refinancing Increase” means, with respect to the Refinancing of any Indebtedness, an amount equal to (a) any premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such Refinancing, (b) any unpaid accrued interest on the Indebtedness being Refinanced, and (c) any existing commitments unutilized under the Indebtedness being Refinanced.
“Permitted Refinancing Indebtedness” mean any Indebtedness issued in exchange for, or the net proceeds of which are used to, extend, refinance, renew, replace, defease or refund (collectively, to “Refinance”), the Indebtedness being Refinanced (or previous refinancings thereof constituting Permitted Refinancing Indebtedness); provided that (a) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so Refinanced (plus any Permitted Refinancing Increase in respect of such Refinancing), (b) such Permitted Refinancing Indebtedness shall have the same obligors and same guarantees as, and be secured on a pari passu basis with, the Indebtedness so Refinanced (provided that the Permitted Refinancing Indebtedness may be subject to lesser guarantees or be unsecured or the Liens securing the Permitted Refinancing Indebtedness may rank junior to the Liens securing the Indebtedness so Refinanced) and, to the extent applicable, the Company shall have satisfied the requirements of Section 5.3(b) and Section 5.5(b) of the Term Loan Intercreditor Agreement with respect to such Permitted Refinancing Indebtedness, (c) the maturity date is later than or equal to, and the weighted average life to maturity of such Permitted Refinancing Indebtedness is greater than or equal to, that of the Indebtedness 


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being Refinanced, (d) if the Indebtedness so Refinanced is subordinated in right of payment to the Obligations, then such Permitted Refinancing Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which it is outstanding, is expressly made subordinate in right of payment to the Obligations at least to the extent that the Indebtedness so Refinanced is subordinated to the Obligations and (e) the terms and conditions of any Permitted Refinancing Indebtedness, taken as a whole, are not materially less favorable to the Loan Parties than the terms and conditions of the Indebtedness that is being Refinanced.
“Permitted Transactions” has the meaning specified in the definition of “Payment Conditions”.
“Person” means any natural person, corporation, limited liability company, trust, Joint Venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established by the Company or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, by any ERISA Affiliate.
“PRB Subsidiary” means each of Contura Coal West, LLC and Contura Wyoming Land, LLC. 
“Pro Forma Basis” means, for purposes of calculating Consolidated Net Tangible Assets, the Fixed Charge Coverage Ratio or any other test that is based on satisfying a financial ratio or metric, that with respect to any acquisition or disposition (in each case, that would be included in a Pro Forma Basis calculation pursuant to Section 1.08), such acquisition or disposition shall be deemed to have occurred as of the first day of the most recent four fiscal quarter period preceding the date of such acquisition or disposition for which the Company has delivered financial statements pursuant to Section 6.01.  In connection with the foregoing, (a) with respect to any such acquisition, income statement items attributable to the Person or property or assets acquired shall be included to the extent relating to any period applicable in such calculations to the extent (i) such items are not otherwise included in such income statement items for the Company and its Restricted Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth in Section 1.01, (ii) such items are supported by financial statements or other information reasonably satisfactory to the Administrative Agent and (iii) any Indebtedness incurred or assumed by the Company or any Subsidiary (including the Person, property or assets acquired) in connection with such acquisition and any Indebtedness of the Person, property or assets acquired which is not retired in connection with such acquisition (A) shall be deemed to have been incurred as of the first day of the most recent four fiscal quarter period preceding the date for such acquisition and (B) if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the most recent four fiscal quarter period preceding the date of such acquisition for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination; and (b) with respect to any such disposition, income statement items attributable to the Person or property or assets being disposed of shall be excluded to the extent relating to any period applicable in such calculations in accordance with the foregoing principles applicable to acquisitions, mutatis mutandis.
“Proceeds” has the meaning specified in the UCC and, in any event, shall also include, but not be limited to, (i) any and all proceeds of any insurance, indemnity, warranty or guaranty payable to the Administrative Agent or the Company or any of its Subsidiaries from time to time with respect to any of the Collateral, (ii) any and all payments (in any form whatsoever) made or due and payable to the Company or any of its Subsidiaries from time to time in connection with any requisition, confiscation, condemnation, seizure or forfeiture of all or any part of the Collateral by any Governmental Authority (or any Person 


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acting under color of Governmental Authority) and (iii) any and all other amounts from time to time paid or payable under or in connection with any of the Collateral.
“Production Payments” means with respect to any Person, all production payment obligations and other similar obligations with respect to coal and other natural resources of such Person that are recorded as a liability or deferred revenue on the financial statements of such Person in accordance with GAAP.
“Properties” has the meaning specified in Section 2.03(a).
“Protective Advances” has the meaning specified in Section 2.03.
“Public Lender” has the meaning specified in Section 9.16(e).
“Qualified Cash” means unrestricted cash of the Borrowers that is (i) deposited in a cash Deposit Account established and maintained at, and in the name of, the Administrative Agent, and subject to a Control Agreement and (ii) subject to the valid, enforceable and first priority perfected security interest of the Administrative Agent; provided that, for purposes of the amount of Qualified Cash included in the calculation of Borrowing Base, such amount may be reduced, at the Administrative Agent’s option, by any obligations owing to it as a depository bank).
“Qualified ECP Guarantor” means, in respect of any Hedging Agreement, each Loan Party that has total assets exceeding $10,000,000 at the time the relevant Guarantee or grant of the relevant security interest becomes effective with respect to such Hedging Agreement or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
“Qualified Equity Interests” means all Equity Interests of a Person other than Disqualified Equity Interests.
“Qualifying IPO” means the issuance by the Company or any Parent Entity of its Equity Interests in an underwritten primary public offering (other than a public offering pursuant to a registration statement on Form S-8) pursuant to an effective registration statement filed with the SEC in accordance with the Securities Act (whether alone or in connection with a secondary public offering).
“Ratable Portion” or (other than in the expression “equally and ratably”) “ratably” means, with respect to any Lender, the percentage obtained by dividing (a) the Commitment of such Lender by (b) the aggregate Commitments of all Lenders (or, at any time after the Termination Date, the percentage obtained by dividing the aggregate outstanding principal balance of the Total Outstandings owing to such Lender by the aggregate outstanding principal balance of the Total Outstandings owing to all Lenders).
“Raw Coal” means Coal having been extracted from a Mine but not yet put through the washing process.
“Reasonable Credit Judgment” means the Administrative Agent’s commercially reasonable credit judgment (from the perspective of a secured asset-based lender), in accordance with customary business practices for comparable asset-based lending transactions exercised in good faith; provided that as it relates to the establishment of Reserves or the adjustment or imposition of exclusionary criteria, Reasonable Credit Judgment will require that (a) such establishment, adjustment or imposition after the Closing Date be based on the analysis of facts, events, conditions or contingencies first occurring or first 


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discovered by the Administrative Agent after the Closing Date or that are materially different from facts, events, conditions or contingencies known to the Administrative Agent on the Closing Date, (b) the imposition or increase of any Reserve shall not duplicate (x) the exclusionary criteria set forth in the definitions of “Eligible Account,” “Eligible Unbilled Account” and “Eligible Inventory,” as applicable (and vice versa), or (y) any Reserves deducted in computing book value or Net Orderly Liquidation Value and (c) the amount of any such Reserve so established or the effect of any adjustment or imposition of exclusionary criteria shall bear a reasonable relationship to the effects that form the basis thereunder.
“Recipient” means (a) the Administrative Agent, (b) any Lender, (c) any L/C Issuer or (d) any other recipient of any payment to be made by or on account of any obligation of the Borrowers, as applicable.
“Reclamation Funding Agreement” means that certain Reclamation Funding Agreement, dated July 12, 2016, by and among: (a) Alpha Natural Resources, Inc., on behalf of itself and its debtor- affiliates; (b) Contura Energy, Inc.; (c) the Illinois Department of Natural Resources; (d) the Kentucky Energy and Environment Cabinet, Department for Natural Resources; (e) the United States Department of the Interior, Office of Surface Mining, Reclamation and Enforcement, in its capacity as the regulatory authority over surface mining operations in the State of Tennessee; (f) the Commonwealth of Virginia, Department of Mines, Minerals and Energy; and (g) the West Virginia Department of Environmental Protection.
“Refinance” has the meaning specified in the definition of Permitted Refinancing Indebtedness.  “Register” has the meaning specified in Section 11.06(c).
“Related Parties” means, with respect to any Person, such Person’s Affiliates and such Person’s and such Person’s Affiliates’ respective managers, administrators, trustees, members, partners, directors, officers, employees, agents, attorneys, fund managers, advisors and representatives.
“Rent Reserve” means each of (a) any reserve established by the Administrative Agent in its Reasonable Credit Judgment in respect of all past due rent and other amounts owing by any Borrower to any landlord, warehouseman, processor, repairman, mechanic, shipper, freight forwarder or other Person who possesses any Inventory of the Borrowers or could assert a Lien on such Inventory or (b) in the case of any property, except for the Lamberts Point Terminal, where the value of any Inventory of the Borrowers is located, stored, used or held at such property exceeds $1,500,000 and with respect to which no Landlord Lien Waiver has been obtained, a three-month reserve against the Eligible Inventory held at such location established by the Administrative Agent.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.
“Reports” has the meaning specified in Section 9.15.
“Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Loans, a Borrowing Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application and (c) with respect to a Swingline Loan, a Swingline Loan Notice.
“Required Lenders” means, as of any date of determination, Lenders holding more than 50% of the sum of (a) the Total Outstandings (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations being deemed “held” by such Lender for purposes of this definition) and (b) the aggregate unused Commitments; provided, (i) that the unused Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders and (ii) to the extent there are more than two Lenders 


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(excluding Affiliates), “Required Lenders” shall also require the consent of at least two Lenders (excluding Affiliates).
“Requirement of Law” means as to any Person, the Organizational Documents of such Person, and any law, treaty, rule or regulation 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.
“Reserve Area” means (a) the real property owned in fee by any Loan Party or in which a Loan Party has a leasehold interest that is part of the areas listed on Schedule 1.01(d) and (b) any real property constituting coal reserves or access to coal reserves owned in fee by any Loan Party or in which a Loan Party has a leasehold interest, acquired after the Closing Date, that is not an active Mine.
“Reserves” means, without duplication, (i) the Rent Reserve, (ii) Shipping Reserves, (iii) the Hedging Reserve and (iv) other reserves established or maintained by the Administrative Agent in its Reasonable Credit Judgment to the extent such reserves relate to facts, events, conditions or contingencies first occurring or first discovered by the Administrative Agent after the Closing Date (or that are materially different from facts, events, conditions or contingencies known to the Administrative Agent on the Closing Date), and for which no reserves were imposed on the Closing Date, and which have, or could reasonably be expected to have, an adverse effect on the value of the Borrowing Base Collateral or the Liens of the Administrative Agent thereon.
“Residual Mechanic's Liens” means the mechanic's Liens existing on the Closing Date securing the payment of unpaid liabilities in respect of supplied labor or materials filed against certain properties of the Loan Parties located in Pennsylvania for so long as such Liens (a) are being satisfied in accordance with that certain Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession, as modified, for Alpha Natural Resources, Inc., as confirmed on July 12, 2016 and (b) do not secure obligations in excess of $1,000,000 in the aggregate at any time outstanding.
“Residual Property Tax Liens” means the Liens existing on the Closing Date securing the payment of unpaid Taxes in respect of real property interests filed against certain properties of the Loan Parties located in Pennsylvania, West Virginia, Virginia and Wyoming for so long as such Liens (a) are being satisfied in accordance with that certain Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession, as modified, for Alpha Natural Resources, Inc., as confirmed on July 12, 2016 and (b) do not secure obligations in excess of $10,000,000 in the aggregate at any time outstanding.
“Responsible Officer” of any person shall mean any executive officer, president, chief financial officer, principal accounting officer, treasurer, assistant treasurer or controller of such person and any other officer or similar official thereof responsible for the administration of the obligations of such person in respect of this Agreement and with respect to financial and tax matters, the chief financial officer, treasurer or assistant treasurer of any Borrower.
“Restricted Payment” means (a) any dividend or other distribution (whether in cash, securities or other property) by the Company or any Restricted Subsidiary with respect to its Capital Stock, or any payment (whether in cash, securities or other property) by the Company or any Restricted Subsidiary, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any of its Capital Stock, or on account of any return of capital to its stockholders, partners or members (or the equivalent Person thereof) and (b) any payment or prepayment of principal of, premium, if any, or interest on, or redemption, purchase, retirement, defeasance (including in-substance or legal defeasance), sinking fund or similar payment with respect to, any unsecured 


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Indebtedness for borrowed money, Subordinated Indebtedness, Junior Lien Indebtedness or any voluntary prepayments made under the Term Loan Facility.
“Restricted Subsidiary” means any Subsidiary that is not an Unrestricted Subsidiary.
“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and any successor thereto.
“Sanctioned Person” means, at any time, any Person with which dealings are prohibited by Sanctions.
“Sanctions” has the meaning specified in Section 5.17(a).
“Sanctions Laws” has the meaning specified in Section 5.17(a).
“Screen Rate” means the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for Dollars) for a period equal in length to such Interest Period as displayed on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as shall be selected by the Administrative Agent in its reasonable discretion.
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Secured Agreement” means any Secured Cash Management Agreement or Secured Hedge Agreement.
“Secured Cash Management Agreement” means (i) any Cash Management Agreement that is entered into by and between the Borrowers and any Cash Management Bank to the extent designated as such by the Borrowers and such Cash Management Bank in writing to the Administrative Agent from time to time in accordance with Section 11.16 and (ii) each Existing Secured Agreement listed on Schedule 7.03 as an “Existing Secured Cash Management Agreement”.
“Secured Hedge Agreement” means any Hedging Agreement permitted under Article VII that is entered into by and between the Borrowers and any Hedge Bank to the extent designated as such by the Borrowers and such Hedge Bank in writing to the Administrative Agent from time to time in accordance with Section 11.16 and (ii) each Existing Secured Agreement listed on Schedule 7.03 as an “Existing Secured Hedge Agreement”.
“Secured Parties” means, collectively, (i) the Lenders, (ii) each L/C Issuer, (iii) the Administrative Agent and Collateral Agent, (iv) each Hedge Bank that is a counterparty to a Secured Hedge Agreement with a Loan Party, (v) each Cash Management Bank that is party to a Secured Cash Management Agreement with a Loan Party, (vi) the Arrangers, and (vii) beneficiaries of each indemnification obligation undertaken by any Loan Party under any Loan Document.
“Securities Account” has the meaning specified in the UCC.
“Security” has the meaning specified in the UCC.


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“Security Agreement” means that certain Pledge and Security Agreement, dated as of the date hereof, by and among the Administrative Agent and each of the Loan Parties party thereto, substantially in the form of Exhibit H, as amended, restated, amended and restated supplemented or otherwise modified from time to time.
“Shipping Reserves” means any reserve established by the Administrative Agent in its Reasonable Credit Judgment for amounts payable to (a) Norfolk Southern Railway or its Affiliates (or any successor owner or operator of Lamberts Point Terminal, (b) CSX Transportation or its Affiliates (or any successor owner or operator of Chesapeake Bay Piers or (c) any additional rail carrier or rail forwarder utilized by the Borrowers from time to time.
“Similar Business” means any of the following, whether domestic or foreign: the mining, production, marketing, sale, trading and transportation (including, without limitation, any business related to terminals) of natural resources including coal, ancillary natural resources and mineral products, exploration of natural resources, any acquired business activity so long as a material portion of such acquired business was otherwise a Similar Business, and any business that is ancillary or complementary to the foregoing.
“Solvent” means, with respect to any Person, that as of the date of determination, both (i) (a) the sum of such Person’s debt (including contingent liabilities) does not exceed the present fair saleable value of such Person’s present assets; (b) such Person’s capital is not unreasonably small in relation to its business as contemplated on the Closing Date and reflected in the projections delivered pursuant to Section 4.01(a)(xi) or with respect to any transaction contemplated to be undertaken after the Closing Date; and (c) such Person has not incurred and does not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts as they become due (whether at maturity or otherwise); and (ii) such Person is “solvent” within the meaning given that term and similar terms under the Bankruptcy Code and other applicable laws relating to fraudulent transfers and conveyances.  For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standards No.  5).
“Specified Transaction” has the meaning specified in Section 1.08.
“Subordinated Indebtedness” means any Indebtedness of the Company and its Restricted Subsidiaries that is contractually subordinated to the Indebtedness under the Loan Documents on terms reasonably satisfactory to the Administrative Agent.
“Subsidiary” of a Person means a corporation, partnership, Joint Venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned directly, or indirectly through one or more intermediaries, or both, by such Person; provided that, notwithstanding the foregoing, DTA will not be a “Subsidiary” for purposes of this Agreement (other than solely for purposes of Section 6.01 of this Agreement and with respect to any financial ratios and other financial calculations); provided further, that the Owner Trust shall not be considered a Subsidiary of any Loan Party.  Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Company.
“Supermajority Lenders” means, as of any date of determination, Lenders holding more than 66.67% of the sum of (a) the Total Outstandings (with the aggregate amount of each Lender’s risk 


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participation and funded participation in L/C Obligations being deemed “held” by such Lender for purposes of this definition) and (b) the aggregate unused Commitments; provided, that (i) the unused Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Supermajority Lenders and (ii) to the extent there are more than two Lenders (excluding Affiliates), “Supermajority Lenders” shall also require the consent of at least two Lenders (excluding Affiliates).
“Supplemental Administrative Agent” has the meaning specified in Section 9.14(a).
“Supporting Obligation” has the meaning specified in the UCC.
“Surety Bonds” means surety bonds obtained by the Company or any Restricted Subsidiary in the ordinary course of business and the indemnification or reimbursement obligations of the Company or such Restricted Subsidiary in connection therewith.
“Swingline” means the revolving credit facility made available by the Swingline Lender pursuant to Section 2.045.
“Swingline Borrowing” means a borrowing of a Swingline Loan pursuant to Section 2.05.
“Swingline Lender” means Citibank, N.A.  or any other Lender that agrees, with the approval of the Administrative Agent and the Borrowers, to act as the Swingline Lender hereunder.
“Swingline Loan” has the meaning specified in Section 2.05(a).
“Swingline Loan Notice” means a notice of a Swingline Borrowing pursuant to Section 2.05(b), which, if in writing, shall be substantially in the form of Exhibit D.
“Swingline Sublimit” means an amount equal to $10,000,000.  The Swingline Sublimit is part of, and not in addition to, the aggregate Commitments.
“Tangible Assets” means at any date, with respect to any Person, (a) the sum of all amounts that would, in accordance with GAAP, be set forth opposite the caption “total assets” (or any like caption) on a consolidated balance sheet of such Person at such date minus (b) the sum of all amounts that would, in accordance with GAAP, be set forth opposite the captions “goodwill” or other intangible categories (or any like caption) on a consolidated balance sheet of such Person on such date.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term Loan Agent” means Jefferies Finance LLC, in its capacities as administrative agent and collateral agent under the Term Loan Credit Agreement or any successor agent.
“Term Loan Credit Agreement” means that certain Credit Agreement, dated as of March 17, 2017, by and among, inter alios, the Company, as borrower, Jefferies Finance LLC, as administrative agent and collateral agent, and the other lenders party thereto from time to time.
“Term Loan Credit Documents” means the “Loan Documents” as defined in the Term Loan Credit Agreement.


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“Term Loan Facility” means the “Facility” as defined in the Term Loan Credit Agreement.
“Term Loan Intercreditor Agreement” means an intercreditor agreement to be entered into
between the Term Loan Agent and the Collateral Agent that sets forth the relative priority of the Priority Liens and the Junior Liens (as each such term is defined in such Term Loan Intercreditor Agreement), on the one hand, compared to the Liens on the Term Loan Priority Collateral, on the other hand, as the same may be amended, restated, supplemented or otherwise modified from time to time.
“Term Loan Obligations” means the “Obligations” as defined in the Term Loan Credit Agreement.
“Term Loan Priority Collateral” has the meaning assigned to such term in the Term Loan Intercreditor Agreement.
“Termination Date” means the earliest of (i) the Maturity Date, (ii) the date of termination of the Commitments pursuant to Section 2.07 and (iii) the date of termination of the Commitment of each Lender and of the obligation of the L/C Issuers to make L/C Credit Extensions pursuant to Section 8.02.
“Test Period” means, at any time, the most recently ended period of four consecutive fiscal quarters of the Company ended on or prior to such time in respect of which financial statements for each quarter or fiscal year in such period have been or are required to be delivered pursuant to Section 6.01; provided that, prior to the first date that financial statements have been or are required to be delivered pursuant to Section 6.01, the Test Period in effect shall be the period from July 26, 2016 through December 31, 2016.  For purposes of Section 7.17, Test Period means, at any time, the most recently ended period of four consecutive fiscal quarters of the Company ended on or prior to such time.
“Total Outstandings” means the aggregate Outstanding Amount of all Loans and L/C Obligations.
“Trademark Security Agreement” means the Trademark Security Agreement, substantially in the form attached to the Security Agreement or such other form reasonably acceptable to the Administrative Agent, by certain Loan Parties in favor of the Collateral Agent, for the benefit of the Secured Parties.
“Transaction Costs” means, collectively, the costs, fees and expenses payable by the Company or any of its Subsidiaries in connection with the Facility and the Transactions.
“Transactions” means, collectively, (a) the entering into by the Loan Parties of the Loan Documents to which they are a party and (b) the payment of the Transaction Costs.
“Three Rivers” is located at Three Rivers Marine and Rail Terminals, 2124 Pennsylvania Route 906, Belle Vernon, Pennsylvania 15012
“Threshold Amount” means $25,000,000.
“Type” means, with respect to any Loan, its character as a Base Rate Loan or a Eurocurrency Rate Loan.
“U.S. Government Obligations” means obligations issued or directly and fully guaranteed or insured by the United States of America or by any agency or instrumentality thereof, provided that the full faith and credit of the United States of America is pledged in support thereof.


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“UCC” means the Uniform Commercial Code as in effect in the State of New York; provided that if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non- perfection or priority.
“UFCA” has the meaning specified in Section 11.19.
“UFTA” has the meaning specified in Section 11.19.
“UMWA” means United Mine Workers of America.
“UMWA Note” has the meaning specified in Section 7.03(t).
“Unbilled Account” means, on any date of determination, each Account of the Borrowers for which (a) the sale represented by such Account was made not more than 30 days prior to such date and (b) an invoice has not yet been sent to the applicable Account Debtor with respect to such Account.
“Unfunded Pension Liability” means the excess of a Pension Plan’s accrued benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the actuarial assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.
“United States” and “U.S.” mean the United States of America.
“Unreimbursed Amount” has the meaning specified in Section 2.04(d)(i).
“Unrestricted Subsidiary” means any Subsidiary of the Company that becomes an Unrestricted Subsidiary in accordance with Section 6.13.
“VEBA” means the Voluntary Employee Beneficiary Association.
“Voting Stock” means, with respect to any Person, such Person’s Equity Interest having the right to vote for the election of directors of such Person under ordinary circumstances.
“Wholly Owned Subsidiary” of any Person shall mean a direct or indirect Subsidiary of such Person, all of the Equity Interests of which (other than directors’ qualifying shares or nominee or other similar shares required pursuant to applicable law) are owned by such Person or another Wholly Owned Subsidiary or are owned together with another Person that is also a Wholly Owned Subsidiary or are owned together by more than one other Wholly Owned Subsidiary.
“Withholding Agent” means any Loan Party and Administrative Agent.
“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

Section 1.02.    Other Interpretive Provisions.  With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:


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(a)    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, (i) any definition of or reference to any agreement, instrument or other document (including any Organizational Document) 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 or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “herein,” “hereof”, “hereto” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) 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.
(b)    In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”
(c)    Section headings herein and in the other Loan Documents are included for convenience of reference only, shall not constitute a part hereof, shall not be given any substantive effect and shall not affect the interpretation of this Agreement or any other Loan Document.

Section 1.03.    Accounting Terms.  (a) Generally.  All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein.
(b)    Changes in GAAP.  If at any time any Accounting Change would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower Representative or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrowers shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such Accounting Change as if such Accounting Change has not been made (subject to the approval of the Required Lenders); provided that, until so amended, all financial covenants, standards and terms in this Agreement shall continue to be calculated or construed as if such Accounting Change had not occurred.  Notwithstanding the foregoing or anything to the contrary contained herein (including in the definitions of “Financing Lease” and/or “Capital Lease Obligations”), in the event of an accounting change requiring all leases to be capitalized, only those leases (assuming for purposes hereof that such leases were in existence on the date hereof) that would constitute Capitalized Leases in conformity with GAAP on the Closing Date shall be considered Financing Leases, and all calculations and determinations under this Agreement or any other Loan Document shall be made or delivered, as applicable, in accordance therewith.


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Section 1.04.    Times of Day.  Unless otherwise specified, all references herein to times of day shall be references to New York City time (daylight or standard, as applicable).

Section 1.05.    Timing of Payment or Performance.  In the event that any payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day that is not a Business Day, the date of such payment (other than as described in the definition of Interest Period) or performance shall extend to the immediately succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.

Section 1.06.    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 in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, 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.

Section 1.07.    Reserves.  When any Reserve is to be established or a change in any amount, reserve, eligibility criteria or other item in the definitions of the terms “Borrowing Base” and “Eligible Accounts” is to be determined in each case in the Administrative Agent’s Reasonable Credit Judgment, such Reserve shall be implemented or such change shall become effective 3 Business Days following delivery of a written notice thereof to the Borrowers (such notice to include a reasonably detailed description of the Reserve being established), or immediately, without prior written notice, if such change is a result of a mathematical calculation and any Default or Event of Default has occurred and is continuing.  During such 3 Business Day period, if applicable, the Administrative Agent will, if requested, discuss any such reserve or change with the Borrowers, and the Borrowers may take such action as may be required so that the event, condition or matter that is the basis for such Reserve or change no longer exists or exists in a manner that would result in the establishment of a lower Reserve or result in a lesser change, in each case, in a manner and to the extent reasonably satisfactory to the Administrative Agent.  Notwithstanding the foregoing, the specified percentages set forth in the definition of “Borrowing Base” will not be reduced without the consent of the Borrowers.

Section 1.08.    Pro Forma Calculations.  Notwithstanding anything herein to the contrary, for purposes of calculating the Fixed Charge Coverage Ratio, any Investment or other acquisition (including any Permitted Acquisition), Disposition, Restricted Payment or Restricted Debt Payment (each, a “Specified Transaction”) the parties hereto acknowledge and agree that all calculations of (i) the Fixed Charge Coverage Ratio and the Payment Conditions, (ii) Consolidated Net Tangible Assets or (iii) any other test that is based on satisfying a financial ratio or metric, shall be made on a Pro Forma Basis (A) with respect to any acquisition by the Company or its Restricted Subsidiaries of any Person, property or assets, if the Consolidated EBITDA for the acquired Person or business for the most recent four fiscal quarter period for which financial statements are available (or if financial statements are not available for four consecutive fiscal quarters, the number of consecutive fiscal quarters for which financial statements are available) is equal to or greater than 5% of the Consolidated EBITDA of the Company and its Restricted Subsidiaries for such period and (B) with respect to any disposition by the Company or its Restricted Subsidiaries of any Person, property or assets, if the Consolidated EBITDA for the Person or business being disposed of for the most recent four fiscal quarter period for which financial statements are available (or if financial statements are not available for four consecutive fiscal quarters, the number of consecutive fiscal quarters for which financial statements are available) was equal to or exceeded 5% of the Consolidated EBITDA of the Company and its Restricted Subsidiaries for such period.  With respect to the above Pro 


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Forma Basis calculations, in the event that the relevant entity or property, which is being acquired or disposed, reports its financial results on a semi-annual basis, the Administrative Agent and the Company may utilize the two most recent semi-annual financial results for purposes of making such calculation and such above determination in a manner similar to the above that is mutually agreeable.

ARTICLE II
 
THE COMMITMENTS AND CREDIT EXTENSIONS

Section 2.01.    Loans.  Subject to Section 11.18 and the other terms and conditions set forth herein, each Lender severally agrees to make loans in Dollars (each such loan, a “Loan”) to a Borrower from time to time, on any Business Day during the Availability Period, in an aggregate principal amount not to exceed at any time outstanding the amount of such Lender’s Commitment; provided, however, that after giving effect to any Borrowing, (i) the Total Outstandings shall not exceed the Maximum Revolving Credit and (ii) the aggregate Outstanding Amount of the Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swingline Loans at such time shall not exceed such Lender’s Commitment.  Within the limits of each Lender’s Commitment, and subject to the other terms and conditions hereof, any Borrower may borrow under this Section 2.01, prepay under Section 2.05(f), and reborrow under this Section 2.01.  The Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.

Section 2.02.    Borrowings, Conversions and Continuations of Loans.  (a) Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of Eurocurrency Rate Loans shall be made upon the applicable Borrower’s irrevocable written notice to the Administrative Agent, which may be given by, subject to Section 11.02(b), by e-mail.  Each such notice must be received by the Administrative Agent not later than 12:00 p.m.  (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurocurrency Rate Loans or of any conversion of Eurocurrency Rate Loans, and (ii) one Business Day prior to the requested date of any Borrowing of Base Rate Loans.  Not later than 12:00 p.m., three Business Days before the requested date of such Borrowing, conversion or continuation of Eurocurrency Rate Loans, the Administrative Agent shall notify the applicable Borrower (which notice may be by telephone) whether or not the requested Interest Period has been consented to by all the Lenders.  Each written notice by the Borrowers pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Borrowing Notice or Notice of Conversion or Continuation, as applicable, appropriately completed and signed by a Responsible Officer of the applicable Borrower.  Each Borrowing of, conversion to or continuation of Eurocurrency Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof.  Except as provided in Section 2.04(d), each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof.  Each Borrowing Notice shall specify (i) the applicable Borrower is requesting a Borrowing, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, (iv) the Type of Loans to be borrowed and (v) the duration of the Interest Period with respect thereto, if applicable.  Each Notice of Conversion or Continuation shall specify (i) whether the applicable Borrower is requesting a conversion of Loans from one Type to the other or a continuation of Loans that are Eurocurrency Rate Loans, and (ii) specifying (A) the amount and Type of Loan being converted or continued, (B) in the case of a conversion to or a continuation of Eurocurrency Rate Loans, the applicable Interest Period and (C) in the case of a conversion, the date of such conversion.  If a Borrower fails to specify a Type of Loan in a Borrowing Notice or if such Borrower fail to give a timely Notice of Conversion or Continuation with respect to Eurocurrency Rate Loans, then the applicable Loans shall be made as, or converted to, Base Rate Loans.  Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurocurrency Rate Loans.  If the applicable Borrower request a 


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Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any such Borrowing Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.
(b)    Following receipt of a Borrowing Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage under the applicable Loan, and if no timely notice of a conversion or continuation is provided by the Borrowers, the Administrative Agent shall notify each such Lender of the details of any automatic conversion to Base Rate Loans described in the preceding subsection.  In the case of any Borrowing, each Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m.  on the Business Day specified in the applicable Borrowing Notice.  Upon satisfaction or waiver of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is on the Closing Date, Section 4.01), the Administrative Agent shall make all funds so received available to the applicable Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the applicable Borrower on the books of the Administrative Agent with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the applicable Borrower; provided, however, that if, on the date a Borrowing Notice with respect to a Borrowing is given by a Borrower, there are L/C Advances outstanding, then the proceeds of such Borrowing, first, shall be applied to the payment in full of any Unreimbursed Amounts in respect thereof, and second, shall be made available to the applicable Borrower as provided above.
(c)    Unless the Lenders are compensated for any losses under Section 3.05, a Eurocurrency Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurocurrency Rate Loan.  During the existence of an Event of Default, no Loans may be requested as, converted to or continued as Eurocurrency Rate Loans if the Required Lenders or the Administrative Agent so notify the applicable Borrower.
(d)    The Administrative Agent shall promptly notify the Borrowers and the Lenders of the interest rate applicable to any Interest Period for Eurocurrency Rate Loans upon determination of such interest rate.  At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the applicable Borrower and the Lenders of any change in the Administrative Agent’s “prime rate” used in determining the Base Rate promptly following the public announcement of such change.
(e)    After giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there shall not be more than five (5) Interest Periods in effect under the Facility.

Section 2.03.    Protective Advances.  (a) The Administrative Agent shall be authorized, in its sole discretion (but with no obligation), (i) after the occurrence and during the continuation of an Event of Default or (ii) at any time that all conditions in Section 4.02 are not satisfied, to make Loans (“Protective Advances”) in an aggregate principal amount outstanding not to exceed 5.0% of the Commitment at any time, if the Administrative Agent deems, in its Reasonable Credit Judgment, that such are Loans necessary or desirable to preserve or protect the Collateral, to enhance the collectability or repayment of the Obligations or, to pay any other amounts chargeable to the Loan Parties under any Loan Documents, including costs, fees and expenses (it being understood that the Administrative Agent shall not be entitled to make Protective Advances for other amounts chargeable to the Loan Parties, including payment of costs, fees and expenses, without the Company’s written consent unless an Event of Default shall have occurred and is continuing).  Subject to the following paragraph, each Lender shall participate in Protective Advances on a pro rata basis.  Required Lenders may prospectively revoke Administrative Agent’s ability to make such Protective Advances by written notice to Administrative Agent.  All Protective Advances shall 


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constitute Base Rate Loans and shall bear interest at the Base Rate plus the Applicable Rate and the Default Rate under Section 2.09(b)(i).  Each Protective Advance shall be payable on demand.
(b)    Notwithstanding anything contained in this Agreement or any other Loan Document, no Protective Advance may be made by Administrative Agent if (i) such advance would cause the aggregate principal amount of all Protective Advances outstanding to exceed 5.0% of the aggregate Commitments or (ii) after giving effect to such Protective Advance, Total Outstandings at such time exceed the Commitments.
(c)    Each Protective Advance shall be secured by the Liens in favor of the Administrative Agent on the Collateral and shall constitute Obligations hereunder.  The making of a Protective Advance on any one occasion shall not obligate the Administrative Agent to make any Protective Advance on any other occasion.  At any time that the conditions precedent set forth in Section 4.2 have been satisfied or waived, the Administrative Agent may request that the Lenders to make a Loan to repay any Protective Advances.
(d)    Upon the making of a Protective Advance by the Administrative Agent (whether before or after the occurrence of a Default or Event of Default), each Lender shall be deemed, without further action by any party hereto, unconditionally and irrevocably to have purchased from the Administrative Agent without recourse or warranty, an undivided interest and participation in such Protective Advance, in proportion to its Applicable Percentage, and upon demand by the Administrative Agent, shall fund such participation to the Administrative Agent.

Section 2.04.    Letters of Credit.  (a) The Letter of Credit Commitment.  Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.04, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrowers or any other Loan Party, and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.04(c), and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrowers or any other Loan Party and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (w) the L/C Obligations outstanding with respect to such L/C Issuer shall not exceed the L/C Sublimit of such L/C Issuer, (x) the aggregate amount of L/C Obligations shall not exceed the L/C Sublimit of all L/C Issuers taken as a whole, (y) the Total Outstandings shall not exceed the Maximum Revolving Credit and (z) the Outstanding Amount of the Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swingline Loans at such time shall not exceed such Lender’s Commitment.  Each Borrower hereby agrees to use commercially reasonable efforts to allocate the aggregate face amount of each Letter of Credit issued hereunder ratably among the L/C Issuers in accordance with their respective individual L/C Sublimit.  Each request by the Borrowers or any other Loan Party for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the applicable Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence.  Within the foregoing limits, and subject to the terms and conditions hereof, each Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrowers may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(b)    (i) No L/C Issuer shall issue any Letter of Credit if the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless the applicable L/C Issuer in its sole discretion and all the Lenders, have approved such expiry date.


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(ii)    No L/C Issuer shall be under any obligation to issue any Letter of Credit if:
(A)    any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good faith deems material to it;
(B)    the issuance of such Letter of Credit would violate one or more policies of such L/C Issuer applicable to letters of credit generally;
(C)    except as otherwise agreed by the Administrative Agent and such L/C Issuer, such Letter of Credit is in an initial stated amount less than $100,000;
(D)    such Letter of Credit is to be denominated in a currency other than Dollars;
(E)    subject to Section 2.04(c)(iv), such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or
(F)    a default of any Lender’s obligations to fund under Section 2.04(d) exists or any Lender is at such time a Defaulting Lender hereunder, unless the applicable L/C Issuer has entered into satisfactory arrangements with the Borrowers or such Lender to eliminate such L/C Issuer’s risk with respect to such Lender.
(iii)    No L/C Issuer shall be under any obligation to amend any Letter of Credit if (A) such L/C Issuer would not have any obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(iv)    Each L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and each L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included such L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to such L/C Issuer.
(v)    No L/C Issuer shall be required to issue documentary or “trade” Letters of Credit (as opposed to “standby” Letters of Credit).


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(c)    Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.  (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Company delivered to an L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the applicable Borrower.  Such Letter of Credit Application must be received by such L/C Issuer and the Administrative Agent not later than 11:00 a.m.  (New York City time) at least five Business Days (or such later date and time as the Administrative Agent and such L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be.  In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and substance reasonably satisfactory to the applicable L/C Issuer: (A)     the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the applicable L/C Issuer may reasonably require.  In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and substance reasonably satisfactory to the applicable L/C Issuer (1) the Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall be a Business Day); (3) the nature of the proposed amendment; and (4) such other matters as the applicable L/C Issuer may reasonably require.  Additionally, the applicable Borrower shall furnish to the applicable L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may reasonably require.
(i)    Promptly after receipt of any Letter of Credit Application, the applicable L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the applicable Borrower and, if not, such L/C Issuer will provide the Administrative Agent with a copy thereof.  Unless such L/C Issuer has received written notice from any Lender, the Administrative Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article IV shall not then be satisfied, then, subject to the terms and conditions hereof, the applicable L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the applicable Borrower or enter into the applicable amendment, as the case may be, in each case in accordance with the applicable L/C Issuer’s usual and customary business practices.  Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the applicable L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Letter of Credit.
(ii)    If a Borrower so requests in any applicable Letter of Credit Application, an L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the applicable L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving written prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued.  Unless otherwise directed by the applicable L/C Issuer, the Borrowers shall not be required to make a specific request to the applicable L/C Issuer for any such extension.  Once an Auto-Extension Letter of Credit has been issued, the 


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Lenders shall be deemed to have authorized (but may not require) the applicable L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that the applicable L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.04(b)), or (B) it has received written notice (which may be by telephone or in writing) on or before the day that is five Business Days before the Non-Extension Notice Date from the Administrative Agent or the Borrowers that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, and in each such case directing the applicable L/C Issuer not to permit such extension.
(iii)    If a Borrower so requests in any applicable Letter of Credit Application, an L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that permits the automatic reinstatement of all or a portion of the stated amount thereof after any drawing thereunder (each, an “Auto-Reinstatement Letter of Credit”).  Unless otherwise directed by the applicable L/C Issuer, such Borrower shall not be required to make a specific request to the applicable L/C Issuer to permit such reinstatement.  Once an Auto-Reinstatement Letter of Credit has been issued, except as provided in the following sentence, the Lenders shall be deemed to have authorized (but may not require) the applicable L/C Issuer to reinstate all or a portion of the stated amount thereof in accordance with the provisions of such Letter of Credit.  Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit permits the applicable L/C Issuer to decline to reinstate all or any portion of the stated amount thereof after a drawing thereunder by giving written notice of such non-reinstatement within a specified number of days after such drawing (the “Non-Reinstatement Deadline”), the applicable L/C Issuer shall not permit such reinstatement if it has received a written notice (which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Reinstatement Deadline from the Administrative Agent or the applicable Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied (treating such reinstatement as an L/C Credit Extension for purposes of this clause) and, in each case, directing the applicable L/C Issuer not to permit such reinstatement.
(iv)    Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the applicable L/C Issuer will also deliver to the applicable Borrower a true and complete copy of such Letter of Credit or amendment.
(d)    Drawings and Reimbursements; Funding of Participations.  (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the applicable L/C Issuer shall notify the applicable Borrower and the Administrative Agent thereof.  The applicable Borrower shall reimburse such L/C Issuer through the Administrative Agent, either with its own funds or with the proceeds of Loans under the Facility, in an amount equal to the amount of such drawing within two Business Days following the date on which such Borrower receives notice of any payment by such L/C Issuer under a Letter of Credit, provided that the Borrowers receive notice by 1:00 p.m., New York City time on such date, or on the second Business Day if notice is not received by such time (each such date, an “Honor Date”).  If such Borrower fails to so reimburse such L/C Issuer by the time set forth in the preceding sentence, the applicable L/C Issuer shall promptly notify the Administrative Agent of the Honor Date and the amount of the unreimbursed drawing (the “Unreimbursed Amount”).  The Administrative Agent shall, in the case of a payment under a Letter of Credit, promptly notify each Lender thereof and of the amount of such Lender’s Applicable Percentage 


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thereof.  Any notice given by such L/C Issuer or the Administrative Agent pursuant to this Section 2.04(d)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.
(i)    Each Lender shall upon any notice pursuant to Section 2.04(d)(i) make funds available to the Administrative Agent for the account of the applicable L/C Issuer at the Administrative Agent’s Office in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m.  (New York City time) on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.04(d)(iii), each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the relevant Borrower in such amount.  The Administrative Agent shall remit the funds so received to the applicable L/C Issuer.
(ii)    With respect to any Unreimbursed Amount for a payment under a Letter of Credit that is not fully refinanced by a Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the applicable Borrower shall be deemed to have incurred from the applicable L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at (A) the rate applicable to Loans that are Base Rate Loans from the Honor Date to the date reimbursement is required pursuant to Section 2.04(d)(i) and (B) thereafter, the Default Rate.  Each Lender’s payment to the Administrative Agent for the account of the applicable L/C Issuer pursuant to Section 2.04(d)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.034.
(iii)    Until each Lender funds its Loan or L/C Advance pursuant to this Section 2.04(d) to reimburse the applicable L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be solely for the account of the applicable L/C Issuer.
(iv)    Each Lender’s obligation to make Loans or L/C Advances to reimburse the applicable L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.04(d), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against such L/C Issuer, the Borrowers or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default or Event of Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing (it being understood and agreed that each Lender’s obligation to make Loans pursuant to this Section 2.04(d) shall not be subject to the conditions set forth in Section 4.02).  No such making of an L/C Advance shall relieve or otherwise impair the obligation of the applicable Borrower to reimburse the applicable L/C Issuer for the amount of any payment made by such L/C Issuer under any Letter of Credit, together with interest as provided herein.
(v)    If any Lender fails to make available to the Administrative Agent for the account of the applicable L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(d) by the time specified in Section 2.04(d)(ii), the L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a 


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rate per annum equal to the Overnight Rate, plus any administrative, processing or similar fees customarily charged by the L/C Issuer in connection with the foregoing.  If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Loan included in the relevant L/C Advance in respect of the relevant L/C Borrowing, as the case may be.  A certificate of the L/C Issuer submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this Section 2.04(d)(vi) shall be conclusive absent manifest error.
(e)    Repayment of Participations.  (i) At any time after an L/C Issuer has made a payment under any Letter of Credit and has received from any Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.04(d), if the Administrative Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the applicable Borrower or otherwise, including proceeds of cash collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Applicable Percentage thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s L/C Advance was outstanding) in the same funds as those received by the Administrative Agent.
(i)    If any payment received by the Administrative Agent for the account of the applicable L/C Issuer pursuant to Section 2.04(d) is required to be returned under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Lender shall pay to the Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the applicable Overnight Rate from time to time in effect.  The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
(f)    Obligations Absolute.  The obligation of the Borrowers to reimburse the applicable L/C Issuer for each drawing under each Letter of Credit and to repay each Unreimbursed Amount shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:
(i)    any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Loan Document;
(ii)    the existence of any claim, counterclaim, setoff, defense or other right that such Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the applicable L/C Issuer or any Lender, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
(iii)    any draft, demand, certificate or other document presented under such 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; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit, except to the extent caused by the applicable L/C Issuer’s gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final, non-appealable judgment;


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(iv)    any payment by the applicable L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit, so long as the L/C Issuer shall have determined in the absence of gross negligence or willful misconduct, in good faith and in accordance with the standard of care specified in the Uniform Commercial Code of the State of New York, that the documents (including each draft) delivered under such Letter of Credit in connection with such presentment appear on their face to be in conformity with such Letter of Credit;
(v)    any payment made by the applicable L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or
(vi)    any other action taken or omitted to be taken by the applicable L/C Issuer under or in connection with any Letter of Credit or the related drafts or documents, whether or not similar to any of the foregoing, that might, but for this Section 2.04(f)(vi), constitute a legal or equitable discharge of the Borrowers’ obligations hereunder.
The applicable Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the applicable Borrower’s instructions or other irregularity, such Borrower will promptly notify the applicable L/C Issuer.  Such Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid.
(g)    Role of L/C Issuer.  Each Lender and the Borrowers agree that, in paying any drawing under a Letter of Credit, the applicable L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document.  None of the L/C Issuers, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuers shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required Lenders as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document.  The Borrowers hereby assume all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude the Borrowers pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement.  Notwithstanding anything to the contrary herein the Borrowers may have a claim against the applicable L/C Issuer, and the applicable L/C Issuer may be liable to the Borrowers, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrowers which the applicable Borrower proves were caused by the applicable L/C Issuer’s willful misconduct or gross negligence as determined by a court of competent jurisdiction in a final, non-appealable judgment.  In furtherance and not in limitation of the foregoing, the applicable L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the applicable L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.


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(h)    Cash Collateral.  (i) Upon the request of the Administrative Agent, (A) if, as of the Letter of Credit Expiration Date or the Termination Date, any L/C Obligation for any reason remains outstanding or (B) if an Event of Default has occurred and is continuing, the Borrowers shall, in each case, immediately Cash Collateralize the then Outstanding Amount of such L/C Obligation.
(i)    Section 2.04 and 8.02(a)(iii) set forth certain additional requirements to deliver cash collateral hereunder.  Cash collateral shall be maintained in the L/C Cash Collateral Account.  If at any time the Administrative Agent determines that any funds held in the L/C Cash Collateral Account are subject to any right or claim of any Person other than the Administrative Agent or that the total amount of such funds is less than the aggregate Outstanding Amount of all L/C Obligations, Borrower will, forthwith upon demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited in the L/C Cash Collateral Account, an amount equal to the excess of (x) such aggregate Outstanding Amount over (y) the total amount of funds, if any, then held in the L/C Cash Collateral Account that the Administrative Agent determines to be free and clear of any such right and claim.  Upon the drawing of any Letter of Credit for which funds are on deposit in the L/C Cash Collateral Account, such funds shall be applied, to the extent permitted under applicable Laws, to reimburse the L/C Issuer for the amount of such drawing.
(i)    Applicability of ISP.  Unless otherwise expressly agreed by the applicable L/C Issuer and the applicable Borrower when a Letter of Credit is issued, the rules of the ISP shall apply to each Letter of Credit.
(j)    Letter of Credit Fees.  The Borrowers shall pay to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage a Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate for Loans that are Eurocurrency Rate Loans times the daily amount available to be drawn under such Letter of Credit.  For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06.  Letter of Credit Fees for Letters of Credit shall be (i) computed on a quarterly basis in arrears and (ii) due and payable on the last Business Day of each calendar quarter, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand.  If there is any change in the Applicable Rate during any quarter, the daily amount available to be drawn under each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.  Notwithstanding anything to the contrary contained herein, upon the request of the Required Lenders, while any Event of Default under Section 8.01(a), (f) or (g) exists, all Letter of Credit Fees shall accrue at the Default Rate.
(k)    Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer.  The Borrowers shall pay to the Administrative Agent, for the account of the applicable L/C Issuer, a fronting fee with respect to each Letter of Credit, at the rate of 0.25% per annum on the face amount drawn under each Letter of Credit, computed on the daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears.  Such fronting fee shall be due and payable on the last Business Day of each calendar quarter, in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand.  For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06.  In addition, the Borrowers shall pay directly to the L/C Issuer for its own account the customary issuance, presentation, negotiation, acceptance, transfer, amendment and other processing fees, and other standard costs and charges, of 


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the L/C Issuer relating to letters of credit as from time to time in effect.  Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.
(l)    Conflict with Issuer Documents.  In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.
(m)    Letters of Credit Issued for Subsidiaries.  Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary, the Borrowers shall be obligated to reimburse the applicable L/C Issuer hereunder for any and all drawings under such Letter of Credit.  The Borrowers hereby acknowledge that the issuance of Letters of Credit for the account of any Subsidiary of any of the Borrowers inures to the benefit of the Borrowers, and that each Borrower’s business derives substantial benefits from the businesses of each such Subsidiary.

Section 2.05.    Swingline Loans.  (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.05, to make loans (each such loan, a “Swingline Loan”) to the Borrowers from time to time on any Business Day during the Availability Period in an aggregate principal amount not to exceed at any time outstanding the amount of the Swingline Sublimit; provided, however, that after giving effect to any Swingline Loan, (i) the Total Outstandings shall not exceed the Maximum Revolving Credit and (ii) the aggregate Outstanding Amount of the Loans of any Lender at such time, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations at such time, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swingline Loans at such time shall not exceed such Lender’s Commitment, and provided further that the Borrowers shall not use the proceeds of any Swingline Loan to refinance any outstanding Swingline Loan.  Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.05, prepay under Section 2.06, and reborrow under this Section 2.05.  Each Swingline Loan shall be a Base Rate Loan.  Immediately upon the making of a Swingline Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Swingline Loan.
(b)    Borrowing Procedures.  Each Swingline Borrowing shall be made upon the applicable Borrower’s irrevocable written notice to the Swingline Lender and the Administrative Agent.  Each such notice must be received by the Swingline Lender and the Administrative Agent not later than 1:00 p.m.  (New York City time) on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing date, which shall be a Business Day.  Unless the Swingline Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. (New York City time) on the date of the proposed Swingline Borrowing (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.05(a), or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, subject to the terms and conditions hereof, the Swingline Lender will, not later than 3:00 p.m.  (New York City time) on the borrowing date specified in such Swingline Loan Notice, make the amount of its Swingline Loan available to the applicable Borrower at its office by crediting the account of the applicable Borrower on the books of the Swingline Lender in immediately available funds.
(c)    Refinancing of Swingline Loans.  (i) The Swingline Lender at any time in its sole and absolute discretion may, and in any event on the seventh calendar day after such Swingline Loan 


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is made, shall request, on behalf of the applicable Borrower (which hereby irrevocably authorizes the Swingline Lender to so request on its behalf), that each Lender make a Base Rate Loan in an amount equal to such Lender’s Applicable Percentage of the amount of Swingline Loans then outstanding or, in the case of any request given with respect to Swingline Loans which have been outstanding for seven calendar days, the amount of such outstanding Swingline Loans; provided that such Loans may, and upon the applicable Borrower’s request shall, be made as Eurocurrency Rate Loans if a Eurocurrency Rate Loan could otherwise be made pursuant to Section 2.02.  Such request shall be made in writing (which written request shall be deemed to be a Borrowing Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans or Eurocurrency Rate Loans, but subject to the unutilized portion of the aggregate Commitments and the conditions set forth in Section 4.02.  The Swingline Lender shall furnish the applicable Borrower with a copy of the applicable Borrowing Notice promptly after delivering such notice to the Administrative Agent.  Each Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Borrowing Notice available to the Administrative Agent in immediately available funds for the account of the Swingline Lender at the Administrative Agent’s Office not later than 1:00 p.m.  (New York City time) on the day specified in such Borrowing Notice, whereupon, subject to Section 2.05(c)(ii), each Swingline Lender that so makes funds available shall be deemed to have made a Base Rate Loan (or Eurocurrency Rate Loan, if applicable) to the applicable Borrower in such amount.  The Administrative Agent shall remit the funds so received to the Swingline Lender.
(ii)    If for any reason any Swingline Loan cannot be refinanced by such a Borrowing in accordance with Section 2.05(c)(i), the request for Base Rate Loans submitted by the Swingline Lender as set forth herein shall be deemed to be a request by the Swingline Lender that each of the Lenders fund its risk participation in the relevant Swingline Loan and each Lender’s payment to the Administrative Agent for the account of the Swingline Lender pursuant to Section 2.05(c)(i) shall be deemed payment in respect of such participation.
(iii)    If any Lender fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.05(c) by the time specified in Section 2.05(c)(i), the Swingline Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing.  If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Loan included in the relevant Borrowing or funded participation in the relevant Swingline Loan, as the case may be.  A certificate of the Swingline Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.
(iv)    Each Lender’s obligation to make Loans or to purchase and fund risk participations in Swingline Loans pursuant to this Section 2.05(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swingline Lender, the Borrowers or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or Event of Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing (it being understood and agreed that 


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each Lender’s obligation to make Loans pursuant to this Section 2.05(c) shall not be subject to the conditions set forth in Section 4.02).  No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrowers to repay Swingline Loans, together with interest as provided herein.
(d)    Repayment of Participations.  (i) At any time after any Lender has purchased and funded a risk participation in a Swingline Loan, if the Swingline Lender receives any payment on account of such Swingline Loan, the Swingline Lender will distribute to such Lender its Applicable Percentage of such payment (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s risk participation was funded) in the same funds as those received by the Swingline Lender.
(ii)    If any payment received by the Swingline Lender in respect of principal or interest on any Swingline Loan is required to be returned by the Swingline Lender under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by the Swingline Lender in its discretion), each Lender shall pay to the Swingline Lender its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the applicable Overnight Rate.  The Administrative Agent will make such demand upon the request of the Swingline Lender.  The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
(e)    Interest for Account of Swingline Lender.  The Swingline Lender shall be responsible for invoicing the Borrowers for interest on the Swingline Loans.  Until each Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.05 to refinance such Lender’s Applicable Percentage of any Swingline Loan, interest in respect of such Applicable Percentage shall be solely for the account of the Swingline Lender.
(f)    Payments of Swingline Loans.  The Borrowers shall make all payments of principal and interest in respect of the Swingline Loans to the Administrative Agent, for the account of the Swingline Lender.

Section 2.06.    Prepayments.  (a) Optional.  The Borrowers may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Loans in whole or in part without premium or penalty; provided that (A) such notice must be received by the Administrative Agent not later than 12:00 p.m.  (1) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans and (2) on the date of prepayment of Base Rate Loans; (B) any prepayment of Eurocurrency Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof; and (C) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding.  Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans.  The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s ratable portion of such prepayment.  If such notice is given by the Borrowers, the Borrowers shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; provided that any such notice may be contingent upon the consummation of a refinancing and such notice may otherwise be extended or revoked, in each case, with the requirements of Section 3.05 to apply to any failure of the contingency to occur and any such extension or revocation.  Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05.


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(b)    Mandatory.  (i) If, at any time, the Total Outstandings at such time exceed the Maximum Revolving Credit, then, (i) to the extent that the Administrative Agent is exercising its rights to sweep cash under any Control Account, within one Business Day and (ii) to the extent that the Administrative Agent is not exercising its rights to sweep cash under any Control Account, within three Business Days, in either case, the Borrowers shall prepay the outstanding Loans and/or the Cash Collateralize the outstanding L/C Obligations (including by depositing funds in the L/C Cash Collateral Account pursuant to Section 2.04(h)(i)) in an aggregate amount sufficient to reduce the amount of Total Outstandings as of such date of payment to an amount less than or equal to the Maximum Revolving Credit; provided, however, that, subject to the provisions of Section 2.04(h)(ii), the Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Loans the Total Outstandings exceed the Maximum Revolving Credit above at such time.
(ii)    At any time following the occurrence and during the continuation of a Liquidity Period, within one Business Day following the receipt of any Net Cash Proceeds in respect of any Disposition of ABL Priority Collateral or any Net Insurance/Condemnation Proceeds constituting ABL Priority Collateral, the Borrowers shall apply an amount equal to 100% of such Net Cash Proceeds or Net Insurance/Condemnation Proceeds, as applicable, received with respect thereto to prepay the outstanding principal amount of the Loans and/or Cash Collateralize the outstanding L/C Obligations, and the Borrowers shall deliver an updated Borrowing Base Certificate to the Administrative Agent on the date of any such Disposition or receipt of Net Insurance/Condemnation Proceeds.
(iii)    Prepayments of the Facilities made pursuant to this Section 2.06(b), shall be applied, first, to the L/C Borrowings, Swingline Loans or Protective Advances, second, ratably to the outstanding Loans and third, to Cash Collateralize the remaining L/C Obligations.
(iv)    In the case of prepayments of the Facilities required pursuant to clause (i) or (ii) of this Section 2.06(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings and Loans, outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrowers for use in the ordinary course of their business.  Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held in the L/C Cash Collateral Account shall be applied (without any further action by or notice to or from the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Lenders, as applicable.
(c)    At the option of the Administrative Agent, principal on the Swingline Loans and interest, fees, expenses and other sums due and payable in respect of the Loans and Protective Advances may be paid from the proceeds of Swingline Loans or Loans.  Each Borrower hereby authorizes the Swingline Lender to make such Swingline Loans pursuant to Section 2.05(a) and the Lenders to make such Loans pursuant to Section 2.05(b) from time to time in the amounts of any and all principal payable with respect to the Swingline Loans and interest, fees, expenses and other sums payable in respect of the Loans and Protective Advances, and further authorizes the Administrative Agent to give the Lenders notice of any Borrowing with respect to such Swingline Loans and Loans and to distribute the proceeds of such Swingline Loans and Loans to pay such amounts.  The Borrowers agree that all such Swingline Loans and Loans so made shall be deemed to have been requested by it and directs that all proceeds thereof shall be used to pay such amounts.

Section 2.07.    Termination or Reduction of Commitments.  (a) The Borrowers may, upon notice to the Administrative Agent, terminate, or from time to time permanently reduce, the Commitments; 


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provided that (i) any such notice shall be received by the Administrative Agent not later than 11:00 a.m.  three Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof and (iii) the Borrowers shall not terminate or reduce the aggregate Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Outstandings would exceed the Maximum Revolving Credit; provided, that any such notice may be contingent upon the consummation of a refinancing and such notice may otherwise be extended or revoked, in each case, with the requirements of Section 3.05 to apply to any failure of the contingency to occur and any such extension or revocation.  The Administrative Agent will promptly notify the Lenders of any such notice of termination or reduction of the aggregate Commitments.  Any reduction of the aggregate Commitments shall be applied to the Commitment of each Lender according to its Applicable Percentage.
(b)    Payment of Fees.    All fees in respect of the Facility accrued until the effective date of any termination of the Facility shall be paid on the effective date of such termination.

Section 2.08.    Repayment of Loans.  
(a)    Loans.  The Borrowers shall, on a joint and several basis in accordance with Section 11.18, repay to the Lenders on the Termination Date the aggregate principal amount of all Loans outstanding on such date.
(b)    Swingline Loans.  The Borrowers shall, on a joint and several basis in accordance with Section 11.18, repay each Swingline Loan on the earlier to occur of (i) the date seven calendar days after such Loan is made and (ii) the Maturity Date.

Section 2.09.    Interest.  (a) Subject to the provisions of Section 2.09(b):
(i)    Each Loan that is (A) a Eurocurrency Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurocurrency Rate for such Interest Period plus the Applicable Rate and (B) a Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate;
(ii)    Each Swingline Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate.
(b)    (i) At any time during an Event of Default under Section 8.01(a), (f) or (g), or at the request of the Required Lenders during any other Event of Default, outstanding Loans and other amounts payable under this Agreement shall bear interest, to the fullest extent permitted by law, after as well as before judgment, at a rate per annum equal to the Default Rate; provided that no amount shall accrue pursuant to this Section 2.09(b) on any overdue amount or other amount payable to a Defaulting Lender so long as such Lender is a Defaulting Lender.  Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.
(c)    Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein.

Section 2.10.    Fees.  In addition to certain fees described in Sections 2.04(j) and (k):


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(a)    Commitment Fee.  The Borrowers shall pay to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage, a commitment fee (the “Commitment Fee”) equal to the Applicable Commitment Fee Rate.  The Commitment Fee shall accrue at all times, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the last Business Day of each calendar quarter, commencing with the first such date to occur after the Closing Date, and on the Termination Date.
(b)    Other Fees.  The Borrowers shall pay to the Administrative Agent for its own account fees in the amounts and at the times specified in the Fee Letter.  Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
(c)    Defaulting Lender Fees.  Notwithstanding anything herein to the contrary, during such period as a Lender is a Defaulting Lender, such Defaulting Lender will not be entitled to any fees accruing during such period pursuant to clause (a) above (without prejudice to the rights of the Non-Defaulting Lenders in respect of such fees); provided that (i) to the extent that a Ratable Portion of the L/C Obligations of such Defaulting Lender is reallocated to the Non-Defaulting Lenders pursuant to Section 2.16(a), such fees that would have accrued for the benefit of such Defaulting Lender will instead accrue for the benefit of and be payable to such Non-Defaulting Lenders, pro rata in accordance with their respective Commitments, and (ii) to the extent that all or any portion of such L/C Obligations cannot be so reallocated, such fees will instead accrue for the benefit of and be payable to the applicable L/C Issuer.

Section 2.11.    Computation of Interest and Fees.  (a) All computations of interest for Base Rate Loans (other than Loans bearing interest at the Base Rate based on clause (c) of the definition thereof) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed.  All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed.  Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.13(a), bear interest for one day.  Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

Section 2.12.    Evidence of Debt.  (a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and, as part of the Register, by the Administrative Agent in the ordinary course of business.  The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrowers and the interest and payments thereon.  Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrowers hereunder to pay any amount owing with respect to the Obligations.  In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.  Upon the request of any Lender to the Borrowers made through the Administrative Agent, the Borrowers shall execute and deliver to such Lender (through the Administrative Agent) a Note (payable to such Lender or its registered assigns), which shall evidence such Lender’s Loans to the Borrowers in addition to such accounts or records.  Each Lender may attach schedules to a Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.


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(b)    In addition to the accounts and records referred to in Section 2.12(a), each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swingline Loans.  In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.

Section 2.13.    Payments Generally; Administrative Agent’s Clawback.  (a) General.  All payments to be made by the Borrowers or the other Loan Parties shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff.  Except as otherwise expressly provided herein, all payments by the Borrowers or the other Loan Parties hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m.  on the date specified herein.  The Administrative Agent will promptly distribute to each Lender its ratable share of such payment in like funds as received by wire transfer to such Lender’s Lending Office.  All payments received by the Administrative Agent after 3:00 p.m.  shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.  If any payment to be made by the Borrowers shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
(b)    (i) Funding by Lenders; Presumption by Administrative Agent.  Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Eurocurrency Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 2:00 p.m.  on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the Borrowers a corresponding amount.  In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrowers severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrowers to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the Overnight Rate, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowers, the interest rate applicable to Base Rate Loans.  If the Borrowers and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrowers the amount of such interest paid by the Borrowers for such period.  If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing.  Any payment by the Borrowers shall be without prejudice to any claim the Borrowers may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii)    Payments by Borrowers; Presumptions by Administrative Agent.  Unless the Administrative Agent shall have received notice from the Borrowers prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the applicable L/C Issuer hereunder that such Borrowers will not make such payment, the Administrative Agent may assume that such Borrower has made such payment on such date in 


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accordance herewith and may, in reliance upon such assumption, distribute to such Lenders or the L/C Issuer, as the case may be, the amount due.  In such event, if such Borrower has not in fact made such payment, then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the Overnight Rate.
A notice of the Administrative Agent to any Lender or the Borrowers with respect to any amount owing under this Section 2.13(b) shall be conclusive, absent manifest error.
(c)    Failure to Satisfy Conditions Precedent.  If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender to the Borrowers as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrowers by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall promptly return such funds (in like funds as received from such Lender) to such Lender, without interest.
(d)    Obligations of Lenders Several.  The obligations of (i) the Lenders hereunder to make Loans and to fund participations in Letters of Credit and (ii) all Lenders hereunder to make payments pursuant to Section 2.04(c) are several and not joint.  The failure of (x) any Lender to make any Loan or to fund any such participation or (y) any Lender to make payment under Section 2.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to do so.
(e)    Funding Source.  Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.

Section 2.14.    Sharing of Payments by Lenders.  If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of (a) Obligations due and payable to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations due and payable to such Lender at such time to (ii) the aggregate amount of the Obligations due and payable to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of the Obligations due and payable to all Lenders hereunder and under the other Loan Documents at such time obtained by all Lenders at such time or (a) Obligations owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations owing (but not due and payable) to such Lender at such time to (i) the aggregate amount of the Obligations owing (but not due and payable) to all Lenders hereunder and under the other Loan Parties at such time) of payment on account of the Obligations owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time obtained by all of the Lenders at such time then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and/or, if applicable, subparticipations in L/C Obligations and Swingline Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of Obligations then due and payable to the Lenders or owing (but not due and payable) to the Lenders, as the case may be, provided that:


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(i)    if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii)    the provisions of this Section 2.14 shall not be construed to apply to (A) any payment made by the Borrowers pursuant to and in accordance with the express terms of this Agreement, (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans, subparticipations in L/C Obligations, or Swingline Loans to any assignee or participant, other than to the Borrowers or any Subsidiary thereof (as to which the provisions of this Section 2.14 shall apply), or (C) any payments pursuant to the Fee Letter.
The Borrowers consent to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrowers rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrowers in the amount of such participation.

Section 2.15.    Increase in Facility.  (a) Provided that no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, upon at least 7 Business Days’ prior written notice to the Administrative Agent (which shall promptly notify the Lenders thereof), the Borrowers may from time to time request an increase in the amount of the Commitments under the Facility (each, a “Facility Increase”) in an aggregate stated amount (for all such requests) not to exceed $25,000,000 (the “Facility Increase Amount”); provided that (i) any such request for a Facility Increase shall be in a minimum stated amount of $10,000,000 (or, if less, the entire remaining amount of the Facility Increase Amount), or such lower amount as determined by the Administrative Agent in its reasonable discretion, (ii) such increase shall be on the same terms (including with respect to margin, pricing, maturity and fees, other than any underwriting fees and arrangement fees applicable thereto) and pursuant to the exact same Loan Documents and any other documentation applicable to the Facility (provided that the Applicable Rate and the Commitment Fee applicable to the Facility may be increased to be identical to that for any Facility Increase to effectuate such Facility Increase) and (iii) such Facility Increase shall be Guaranteed by the exact same Guarantors and shall be secured by a Lien on the exact same Collateral ranking pari passu with the Lien securing the Facility (and no Facility Increase may be (x) Guaranteed by any Person that is not a Loan Party or (y) secured by any assets other than the Collateral).
(b)    Lender Elections to Increase.  The Borrowers may seek commitments in respect of any Facility Increase from then-existing Lenders (each of which shall be entitled to agree or decline to participate in such Facility Increase in its sole discretion) or additional banks, financial institutions and other institutional lenders or investors who will become Lenders in connection with such Facility Increase (each, an “Additional Lender”); provided that each Additional Lender shall be approved by each of the Administrative Agent, the Swingline Lender and each L/C Issuer (such approval not to be unreasonably withheld, delayed or conditioned), to the extent approval thereof would be required pursuant to the definition of “Eligible Assignee” with respect to any assignment of Loans or Commitments.
(c)    Effective Date and Allocations.  If the Facility is increased in accordance with this Section 2.15, the Administrative Agent and the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such Facility Increase.  The Administrative Agent shall promptly notify the Borrowers and the Lenders of the final allocation of such Facility Increase and the Increase Effective Date.


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(d)    Conditions to Effectiveness of Increase.  As a condition precedent to such Facility Increase, the Borrowers shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the Increase Effective Date signed by a Responsible Officer of the Company (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such Facility Increase, and (ii) in the case of the Borrowers, certifying that, before and after giving effect to such Facility Increase, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this Section 2.15, the representations and warranties contained in Section 5.05(a) and (b) shall be deemed to refer to the most recent financial statements furnished pursuant to Section 6.01, and (B) no Default or Event of Default has occurred and is continuing.  The Borrowers shall prepay any Loans outstanding on the Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Loans ratable with any revised Applicable Percentages arising from any non-ratable increase in the Commitments under this Section 2.15.
(e)    Conflicting Provisions.    This Section shall supersede any conflicting provisions in Section 2.14 or Section 11.01.

Section 2.16.    Defaulting Lender.
(a)    Defaulting Lender Adjustments.  Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
(i)    Waivers and Amendments.  Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Required Lenders; and
(ii)    Defaulting Lender Waterfall.  Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 11.08 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any L/C Issuer or Swingline Lender hereunder; third, if so determined by the L/C Issuer or Swingline Lender hereunder, to be held as cash collateral for future funding obligations of such Defaulting Lender in respect of any participation in any Swingline Loan or L/C Obligation; fourth, as the Borrowers may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrowers, to be held in a deposit account and released pro rata in order to satisfy obligations of such Defaulting Lender to fund Loans under this Agreement; sixth, to the payment of any amounts owing to the Lenders, the L/C Issuers or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuers or Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by 


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the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Borrowings owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Borrowings owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations are held by the Lenders pro rata in accordance with the Commitments under the applicable Facility without giving effect to clause (iii) below.  Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.16(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii)    Reallocation of Participations to Reduce Fronting Exposure.  All or any part of such Defaulting Lender’s participation in L/C Obligations and Swingline Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that such reallocation does not cause the aggregate Outstanding Amount of any Non- Defaulting Lender’s Loans and L/C Obligations to exceed such Non-Defaulting Lender’s Commitment.  No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.
(iv)    Cash Collateral.  If the reallocation described in clause (iii) above cannot, or can only partially, be effected, the Borrowers shall, without prejudice to any right or remedy available to it hereunder or under law, cash collateralize the L/C Issuers’ Fronting Exposure in accordance with the procedures set forth in Section 2.16(a)(ii).
(b)    Defaulting Lender Cure.  If the Borrowers, the Administrative Agent, each L/C Issuer and each Swingline Lender agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any cash collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held pro rata by the Lenders in accordance with the Commitments under the applicable Facility (without giving effect to Section 2.16(a)(iii)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(c)    New Swingline Loans / Letters of Credit.  So long as any Lender is a Defaulting Lender, (i) the Swingline Lender shall not be required to fund any Swingline Loans unless it is satisfied that it will have not Fronting Exposure after giving effect to such Swingline Loans and (ii) no L/C 


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Issuer shall be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.

ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY

Section 3.01.    Taxes.  (a) Payments Free of Taxes.  Any and all payments by or on behalf of any Loan Party hereunder or under any other Loan Document shall be made free and clear of and without deduction or withholding for any Taxes, except as required by applicable law.  If any applicable law (as determined in the good faith of the applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 3.01(a)) the applicable Recipient receives an amount equal to the sum it would have received had no such deductions or withholdings been made.
(b)    Payment of Other Taxes by the Borrowers.  Without duplication of any obligation set forth in subsection (a) above, the Loan Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of any Other Taxes.
(c)    Indemnification by the Borrowers.  The Loan Parties shall jointly and severally indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient, or required to be withheld or deducted from a payment to such Recipient, on or with respect to any payment made by or on account of any obligation of the Loan Parties under any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to the Borrowers by a Lender or an L/C Issuer (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or an L/C Issuer, shall be conclusive absent manifest error.
(d)    Evidence of Payments.  As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 3.01, the applicable Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(e)    Status of Lenders.  Any Lender that is entitled to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Loan Document shall deliver to the Borrower Representative (with a copy to the Administrative Agent), at the time or times prescribed by applicable law and from time to time when reasonably requested by the Borrower Representative or the Administrative Agent, such properly completed and executed documentation prescribed by applicable law or reasonably requested by the Borrower Representative or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if requested by the Borrower Representative or the Administrative Agent, shall 


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deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower Representative or the Administrative Agent as will enable the Borrower Representative or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.
Each Lender that is not a Foreign Lender shall deliver to the Borrower Representative and Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter as prescribed by applicable law or upon the reasonable request of the Borrower Representative or Administrative Agent), two duly completed and executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax.
Without limiting the generality of the foregoing, each Foreign Lender shall deliver to the Borrower Representative and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Borrower Representative or the Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable or any subsequent version thereof or successor thereto:
(i)    in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, duly completed and executed copies of IRS Form W-8BEN or IRS W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty,
(ii)    duly completed and executed copies of IRS Form W-8ECI,
(iii)    in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit M-1 to the effect that such Foreign Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Company within the meaning of Section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) duly completed and executed copies of IRS Form W-8BEN or W-8BEN-E, as applicable,
(iv)    to the extent a Foreign Lender is not the beneficial owner, duly completed and executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate substantially in the form of Exhibit M-2 or Exhibit M-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit M-4 on behalf of each such direct and indirect partner, and
(v)    duly completed and executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States Federal withholding tax duly completed and executed together with such supplementary documentation as may be prescribed by applicable law to permit the Company or Administrative Agent to 


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determine the withholding or deduction required to be made; provided that notwithstanding anything to the contrary in this Section 3.01(e), the completion, execution and submission of the documentation described in this clause (v) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower Representative and the Administrative Agent at the time or times prescribed by law and at such time or times as reasonably requested by the Borrower Representative or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower Representative or the Administrative Agent as may be necessary for the Borrower Representative and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for the purposes of this paragraph, “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower Representative and the Administrative Agent in writing of its legal inability to do so.
Notwithstanding the foregoing, no Lender or any Participant shall be required to deliver any form or other document under this Section 3.01(e) that it is not legally entitled to deliver.
(f)    Treatment of Certain Refunds.  If the Administrative Agent or any Lender receives a refund with respect to Taxes to which it has been indemnified pursuant to this Section 3.01 (including by the payment of additional amounts pursuant to this Section 3.01), which in the reasonable discretion and judgment exercised in good faith of such Administrative Agent or Lender is allocable to such payment, it shall promptly pay such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out- of-pocket expenses (including Taxes) of such Administrative Agent or Lender incurred in obtaining such refund and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, however, that the Borrowers agree to promptly return such amount, net of any incremental additional costs (plus any penalties, interest or other charges imposed by the relevant Governmental Authority), to the applicable Administrative Agent or Lender, as the case may be, if it receives notice from the applicable Administrative Agent or Lender that such Administrative Agent or Lender is required to repay such refund to the relevant Governmental Authority.  Notwithstanding anything to the contrary in this paragraph (f), in no event will the Administrative Agent or any Lender be required to pay any amount to the Borrowers pursuant to this paragraph (f) the payment of which would place the Administrative Agent or any Lender in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid.  This subsection shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the Borrowers or any other Person.


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(g)    Indemnification by the Lender.  Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.06(d) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this Section 3.01(g)
(h)    Survival.  Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
(i)    Defined Terms.  For purpose of this Section 3.01, any term “Lender” includes any L/C Issuer and the term “applicable law” includes FATCA.

Section 3.02.    Illegality.  If any Lender determines that as a result of any Change in Law it becomes unlawful, or that any Governmental Authority asserts that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Eurocurrency Rate Loans, or to determine or charge interest rates based upon the Eurocurrency Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the applicable interbank market, then, on notice thereof by such Lender to the Borrower Representative through the Administrative Agent, (a) any obligation of such Lender to make or continue Eurocurrency Rate Loans or to convert Base Rate Loan to Eurocurrency Rate Loans, shall be suspended and (b) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurocurrency Rate component of the Base Rate, the interest rate on Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurocurrency Rate component of the Base Rate, in each case, until such Lender notifies the Administrative Agent and the Borrower Representative that the circumstances giving rise to such determination no longer exist.  Upon receipt of such notice, (i) the Borrower Representative shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or convert all such Eurocurrency Rate Loans of such Lender to Base Rate Loans (the interest rate on Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurocurrency Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurocurrency Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurocurrency Rate Loans and (ii) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurocurrency Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurocurrency Rate component thereof until the Administrative Agent is advised in writing by such Lender, which it shall do as promptly as possible, that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurocurrency Rate.  Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or converted.


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Section 3.03.    Inability to Determine Rates.  If the Required Lenders determine that for any reason in connection with any request for a Eurocurrency Rate Loan or a conversion to or continuation thereof that (a) adequate and reasonable means do not exist for determining the Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan, or (b) the Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Eurocurrency Rate Loan, the Administrative Agent will promptly so notify the Borrower Representative and each Lender.  Thereafter, (i) the obligation of the Lenders to make or maintain Eurocurrency Rate Loans in the affected currency or currencies shall be suspended and (ii) in the event of a determination described in the preceding sentence with respect to the Eurocurrency Rate component of the Base Rate, the utilization of the Eurocurrency Rate component in determining the Base Rate shall be suspended, in each case, until the Administrative Agent (upon the instruction of the Required Lenders, who agree to so instruct the Administrative Agent once the circumstances giving rise to the inability ability to determine rates no longer exist) revokes such notice.  Upon receipt of such notice, the Borrower Representative may revoke any pending request for a Borrowing of, conversion to or continuation of Eurocurrency Rate Loans or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein.

Section 3.04.    Increased Costs; Reserves on Eurocurrency Rate Loans.
(a)    Increased Costs Generally.  If any Change in Law shall:
(i)    impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the Eurocurrency Rate contemplated by Section 3.04(e)) or any L/C Issuer;
(ii)    subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes, and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii)    impose on any Lender or L/C Issuer or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Eurocurrency Rate Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making or maintaining any Eurocurrency Rate Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or such other Recipient of making or maintaining any Eurocurrency Rate Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Administrative Agent, Lender or L/C Issuer 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 or such other Recipient (whether of principal, interest or any other amount) then, upon written request of such Lender or such other Recipient setting forth in reasonable detail such increased costs, the Borrowers will pay to such Lender or such other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered; provided that before making any such demand, each Lender agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and so long as such efforts would not be materially disadvantageous to it, in its reasonable discretion, in any legal, economic or regulatory manner) to designate 


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a different Eurocurrency lending office if the making of such designation would allow the Lender or its Eurocurrency lending office to continue to perform its obligation to make Eurocurrency Rate Loans or to continue to fund or maintain Eurocurrency Rate Loans and avoid the need for, or reduce the amount of, such increased cost.
(b)    Capital Requirements.  If any Lender or L/C Issuer reasonably determines that any Change in Law affecting such Lender or such L/C Issuer or any Lending Office of such Lender or such Lender’s or such L/C Issuer’s holding company, if any, regarding capital requirements has the effect of reducing the rate of return on such Lender’s or such L/C Issuer’s capital or on the capital of such Lender’s or such L/C Issuer’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below that which such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or such L/C Issuer’s policies and the policies of such Lender’s or such L/C Issuer’s holding company with respect to capital adequacy), then from time to time, after submission to the Borrowers (with a copy to the Administrative Agent) of a written request therefor setting forth in reasonable detail the change and the calculation of such reduced rate of return, the Borrowers will pay to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding company for any such reduction suffered.
(c)    Certificates for Reimbursement.  A certificate of a Lender or an L/C Issuer setting forth the amount or amounts necessary to compensate such Lender or such L/C Issuer or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section 3.04, describing the basis therefor and showing the calculation thereof in reasonable detail, and delivered to the Borrowers shall be conclusive, absent manifest error.  The Borrowers shall pay such Lender or such L/C Issuer, as the case may be, the amount shown as due on any such certificate within 30 days after receipt thereof.
(d)    Delay in Requests.  Failure or delay on the part of any Lender or L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender’s or such L/C Issuer’s right to demand such compensation, provided that the Borrowers shall not be required to compensate a Lender or an L/C Issuer pursuant to the foregoing provisions of this this Section for any increased costs incurred or reductions suffered more than 90-days prior to the date that such Lender or such L/C Issuer, as the case may be, notifies the Borrowers of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or such L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 90-day period referred to above shall be extended to include the period of retroactive effect thereof).
(e)    Additional Reserve Requirements.  The Borrowers shall pay to each Lender, (i) as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”), additional interest on the unpaid principal amount of each Eurocurrency Rate Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as reasonably determined by such Lender in good faith, which determination shall be conclusive absent manifest error), and (ii) as long as such Lender shall be required to comply with any reserve ratio requirement or analogous requirement of any other central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the Eurocurrency Rate Loans, such additional costs (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual costs allocated to such Commitment or Loan by such Lender (as determined by such Lender 


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in good faith, which determination shall be conclusive absent manifest error), which in each case shall be due and payable on each date on which interest is payable on such Loan, provided the Borrowers shall have received at least 10 Business Days’ prior written notice (with a copy to the Administrative Agent) of such additional interest or costs from such Lender describing the basis therefor and showing the calculation thereof, in each case, in reasonable detail.  If a Lender fails to give prior written notice 10 Business Days prior to the relevant Interest Payment Date, such additional interest or costs shall be due and payable within 30 days from receipt of such notice.
(f)    Certain Rules Relating to the Payment of Additional Amounts.  If any Lender requests compensation pursuant to this Section 3.04, or the Borrowers are required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, such Lender shall either (A) forego payment of such additional amount from the Borrowers or (B) reasonably afford the Borrowers the opportunity to contest, and reasonably cooperate with the Borrowers in contesting, the imposition of any Indemnified Taxes or other amounts giving rise to such payment; provided that the Borrowers shall reimburse such Lender for its reasonable and documented out-of-pocket costs, including reasonable and documented attorneys’ and accountants’ fees and disbursements incurred in so cooperating with the Borrowers in contesting the imposition of such Indemnified Taxes or other amounts.

Section 3.05.    Compensation for Losses.  Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrowers shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
(a)    any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
(b)    any failure by the Borrowers (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by the Borrower Representative; or
(c)    any assignment of a Eurocurrency Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrowers pursuant to Section 11.13;
including any foreign exchange losses and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan, from fees payable to terminate the deposits from which such funds were obtained or from the performance of any foreign exchange contract, but excluding any loss of anticipated profits.  The Borrowers shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrowers to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each Eurocurrency Rate Loan made by it at the Eurocurrency Rate used in determining the Eurocurrency Rate for such Loan by a matching deposit or other borrowing in the offshore interbank market for such currency for a comparable amount and for a comparable period, whether or not such Eurocurrency Rate Loan was in fact so funded.

Section 3.06.    Mitigation Obligations; Replacement of Lenders.
(a)    Designation of a Different Lending Office.  If any Lender requests compensation under Section 3.04, or the Borrowers are required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender gives 


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a notice pursuant to Section 3.02, then such Lender shall (i) use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (A) would eliminate or reduce amounts payable pursuant to Sections 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (B) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender and (ii) promptly inform the Borrower Representative and Administrative Agent when the circumstances giving rise to the applicability of such Sections no longer exists.  The Borrowers hereby agree to pay all reasonable and documented costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b)    Replacement of Lenders.  If any Lender requests compensation under Section 3.04, if the Borrowers are required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, if any Lender gives a notice pursuant to Section 3.02 or if any Lender is at such time a Defaulting Lender, then the Borrowers may replace such Lender in accordance with Section 11.13.

Section 3.07.    Survival.  The parties’ obligations under this Article III shall survive termination of the aggregate Commitments and repayment of all other Obligations hereunder.

ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

Section 4.01.    Conditions of Effectiveness.  The effectiveness of this Agreement is subject to satisfaction of the following conditions precedent:
(a)    The Administrative Agent’s receipt of the following, each of which shall be originals or electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a duly authorized officer of the applicable signing Loan Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i)    executed counterparts of this Agreement executed by the Administrative Agent, each Lender and each Loan Party;
(ii)    each Note executed by the Borrowers in favor of each Lender requesting a Note or Notes;
(iii)    the Security Agreement executed by each Loan Party;
(iv)    the Term Loan Intercreditor Agreement executed by the Borrowers and the Term Loan Agent;
(v)    the Fee Letter executed by the Company and the Administrative Agent;
(vi)    such certificates of resolutions or other action, incumbency certificates and/or other certificates of duly authorized officers of each Loan Party and each Restricted Subsidiary party to a Loan Document, in each case, as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each officer of each Loan Party or 


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Restricted Subsidiary executing the Loan Documents to which each Loan Party or Restricted Subsidiary is a party;
(vii)    such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect;
(viii)    the executed opinion of Hunton & Williams LLP, counsel to the Company and special New York counsel to the other Loan Parties, addressed to the Administrative Agent, the Collateral Agent and each Lender, in form and substance reasonably acceptable to the Administrative Agent and Collateral Agent;
(ix)    (i) unaudited consolidated financial statements for the quarter ending September 30, 2016 prepared in accordance with GAAP and (ii) financial projections (including the assumption on which such projections are based) for fiscal years 2017 through 2021;
(x)    a certificate signed by a Responsible Officer of the Company certifying that the conditions specified in Sections 4.01(c) and Sections 4.02(a) and (b) have been satisfied, and (B) that there has not occurred since December 31, 2016, any Material Adverse Effect;
(xi)    a solvency certificate from the chief financial officer of the Company in the form of Exhibit L, which demonstrates that the Company and its Restricted Subsidiaries on a consolidated basis, are, and after giving effect to the Transactions and the other transactions contemplated hereby, will be, Solvent
(xii)    copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment Lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a recent date listing all effective financing statements, Lien notices or comparable documents that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Material Real Property of any Loan Party is located and the state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that the Administrative Agent deems reasonably necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Security Agreements (other than Permitted Liens);
(xiii)    the Collateral Questionnaire, executed by each Loan Party; and
(xiv)    a Borrowing Base Certificate covering the Borrowing Base as of the Closing Date, with customary supporting documentation.
(b)    (i) Any fees required to be paid on or before the Closing Date to the Administrative Agent, the Arrangers or the Lenders pursuant to the Fee Letter shall have been paid and (ii) any costs and expenses required to be paid on or before the Closing Date to the Administrative Agent, the Arrangers or the Lenders to the extent invoices have been received by the Company at least two Business Days prior to the Closing Date (or such later date as reasonably agreed by the Company) shall have been paid.


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(c)    The Company and its Restricted Subsidiaries shall have complied in all material respects with all state and federal regulations regarding financial assurance requirements (including but not limited to reclamation bonding requirements).
(d)    The Administrative Agent shall have received a certificate from the applicable Loan Party’s insurance broker or other evidence satisfactory to it that all insurance required to be maintained pursuant to Section 6.07 is in full force and effect, together with endorsements naming Collateral Agent, for the benefit of Secured Parties, as additional insured and lender’s loss payee thereunder to the extent required under Section 6.07.
(e)    In order to create in favor of Collateral Agent, for the benefit of Secured Parties, a valid, perfected First Priority security interest in the Collateral (subject to the limitations set forth in the Collateral Documents), each Loan Party shall have delivered to Collateral Agent:
(i)    executed counterparts of the Security Agreement;
(ii)    evidence reasonably satisfactory to Administrative Agent of the compliance by each Loan Party of their obligations under the Security Agreement and the other Collateral Documents (including their obligations to execute or authorize, as applicable, and deliver UCC financing statements (including, without limitation, as-extracted financing statements), originals of securities, instruments and chattel paper and any agreements governing deposit and/or securities accounts as provided therein);
(iii)    fully executed IP Security Agreements, in proper form for filing or recording in the United States Patent and Trademark Office and the United States Copyright Office, as applicable, memorializing and recording the encumbrance of the Intellectual Property listed in Schedule 6 to the Security Agreement; and
(iv)    evidence that each Loan Party shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including any other intercompany notes evidencing Indebtedness permitted to be incurred pursuant to Section 7.03) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by the Administrative Agent.
(f)    There shall not exist any action, suit, investigation, litigation, proceeding or hearing, pending or threatened in writing in any court or before any arbitrator or Governmental Authority that impairs the ability of the Loan Parties to consummate the Transactions and no preliminary or permanent injunction or order by a state or federal court shall have been entered, in each case that would be material and adverse to the Arrangers, the Agents or the Lenders.  All Governmental Authorities and Persons shall have approved or consented to the transactions contemplated hereby, to the extent required, and such approvals shall be in full force and effect.
(g)    The Arrangers and the Agents shall have received at least three business days prior to the Closing Date all documentation and other information required by the Arrangers’ and the Agents’ regulatory authorities with respect to the Company and the other Loan Parties under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, that has been requested by the Arrangers or the Agents at least ten Business Days prior to the Closing Date.


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(h)    On the Closing Date, neither the Company nor any of its Subsidiaries shall have any material Indebtedness other than Indebtedness permitted pursuant to Section 7.03.
(i)    Since December 16, 2016, no Material Adverse Effect shall have occurred.
(j)    The Administrative Agent shall have received any promissory note required to be pledged to the Administrative Agent pursuant to the Security Agreement endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof.
(k)    The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document shall be true and correct in all material respects (or, if such representation or warranty is subject to a materiality or Material Adverse Effect qualification, in all respects) on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality or by a reference to a Material Adverse Effect in the text thereof.
(l)    No Default or Event of Default shall have occurred and be continuing, or would result, from any Credit Extension or from the application of the proceeds thereof on the Closing Date.
For purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under any Loan Document to be consented to or approved by or acceptable or satisfactory to such Lender, unless the Administrative Agent shall have received written notice from such Lender prior to the Closing Date specifying its objection thereto.

Section 4.02.    Conditions to All Credit Extensions.  The obligation of each Lender to honor any Request for Credit Extension (other than a Borrowing Notice requesting only a conversion of Loans to the other Type, or a continuation of Eurocurrency Rate Loans) is subject to the following conditions precedent:
(a)    The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document shall be true and correct in all material respects (or, if such representation or warranty is subject to a materiality or Material Adverse Effect qualification, in all respects) on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, and except that for purposes of this Section 4.02 following the Closing Date, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality or by a reference to a Material Adverse Effect in the text thereof.
(b)    No Default or Event of Default shall have occurred and be continuing, or would result, from such proposed Credit Extension or from the application of the proceeds thereof.
(c)    After giving effect to any Credit Extension (or the incurrence of any L/C Obligations), the Total Outstandings shall not exceed the Maximum Revolving Credit;


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(d)    The Administrative Agent and, if applicable, each applicable L/C Issuer or the Swingline Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.
Each Request for Credit Extension (other than a Borrowing Notice requesting only a conversion of Loans to the other Type or a continuation of Eurocurrency Rate Loans) submitted by the Borrowers shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a), (b) and (c) have been satisfied on and as of the date of the applicable Credit Extension.

ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrowers and each Guarantor, on behalf of themselves and their respective Subsidiaries, represents and warrants to the Administrative Agent and the Lenders that:

Section 5.01.    Existence, Qualification and Power.  Each of the Borrowers and their Restricted Subsidiaries (a) (i) is duly organized or formed and validly existing and (ii) is in good standing under the Laws of the jurisdiction of its incorporation or organization, if such legal concept is applicable in such jurisdiction, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, and (c) is duly qualified, licensed, and in good standing (to the extent good standing is an applicable legal concept in the relevant jurisdiction), under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except in each case referred to in clauses (a)(ii), (b)(i) or (c), to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect.

Section 5.02.    Authorization; No Contravention.  The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is a party, (a) have been duly authorized by all necessary corporate or other organizational action and (b) do not and will not (i) violate the terms of any of such Person’s Organizational Documents; (ii) violate or result in any breach of, or the creation of, any Lien (except for any Liens that may arise under the Loan Documents) under, or require any payment to be made under (A) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (B) any order, injunction, writ or decree of any Governmental Authority to which such Person or its property is subject or (C) any arbitral award to which such Person or its property is subject; or (iii) violate any Law binding on such Loan Party, except in each case referred to in clauses (b)(ii) or (b)(iii) to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect.

Section 5.03.    Governmental Authorization.  No action, consent or approval of, registration or filing with or any other action by any Governmental Authority is or will be required in connection with the Transactions except for (a) the filing of UCC financing statements and certificates of title, (b) filings with the United States Patent and Trademark Office and the United States Copyright Office, (c) recordation of the Mortgages, (d) such consents, authorizations, filings or other actions that have either (i) been made or obtained and are in full force and effect or (ii) are listed on Schedule 5.03 and (e) such actions, consents and approvals the failure to be obtained or made which would not reasonably be expected to have a Material Adverse Effect.


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Section 5.04.    Binding Effect.  This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto.  This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other Laws relating to or affecting creditors' rights generally, general principles of equity, regardless of whether considered in a proceeding in equity or at law and an implied covenant of good faith and fair dealing.

Section 5.05.    Financial Statements; No Material Adverse Effect.
(a)    The Audited Financial Statements of the Company and its Subsidiaries (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein and (ii) fairly present in all material respects the financial condition of the Company and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein.
(b)    The unaudited consolidated balance sheet of the Company and its Subsidiaries dated September 30, 2016 and the related consolidated statements of income or operations, shareholders’ equity and cash flows for the fiscal quarter ended on such date (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present in all material respects the financial condition of the Company and its Subsidiaries as of such dates and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end adjustments.
(c)    There has not occurred, since December 31, 2016, any Material Adverse Effect.
(d)    The financial projections delivered pursuant to Section 4.01 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were believed to be reasonable in light of the conditions existing at the time of delivery of such forecasts (it being understood that any such information is subject to significant uncertainties and contingencies, many of which are beyond the Company’s control, and that no assurance can be given that the future developments addressed in such information can be realized, that actual results may differ and such differences may be material).

Section 5.06.    Litigation.  There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of a Responsible Officer of the Company threatened in writing, at law, in equity, by or before any Governmental Authority, by or against the Company or any of its Restricted Subsidiaries or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document, or any of the transactions contemplated hereby, or (b) as to which there is a reasonable possibility of an adverse determination and that, if so determined, would reasonably be expected to have a Material Adverse Effect.

Section 5.07.    No Default.  None of the Company nor any of its Restricted Subsidiaries is in default under or with respect to any Contractual Obligation that would reasonably be expected to have a Material Adverse Effect.  No Default or Event of Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.

Section 5.08.    Ownership and Identification of Property.


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(a)    The Company and its Restricted Subsidiaries have good record and marketable (subject to Permitted Liens) title in fee simple to, or valid leasehold, easement or contractual interests in, all real property necessary or used in the ordinary conduct of its business as it is currently conducted, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect.  As of the Closing Date, with respect to all real property listed on Schedule 5.08(c): (i) the Company and its Restricted Subsidiaries possess all leasehold interests necessary for the operation of the Mines currently being operated by each of them and included or purported to be included in the Collateral pursuant to the Collateral Documents, except where the failure to possess such leasehold interests would not reasonably be expected to have a Material Adverse Effect, (ii) each of their respective rights under the leases, contracts, rights-of-way and easements necessary for the operation of such Mines are in full force and effect, except to the extent that failure to maintain such leases, contracts, rights of way and easements in full force and effect would not reasonably be expected to have a Material Adverse Effect; and (iii) each of the Company and its Restricted Subsidiaries possesses all licenses, permits or franchises which are necessary to carry out its business as presently conducted at any Mine included or purported to be included in the Collateral pursuant to the Collateral Documents, except where failure to possess such licenses, permits or franchises would not, in the aggregate, be reasonably expected to have a Material Adverse Effect.
(b)    Schedule 5.08(b) lists completely and correctly as of the Closing Date all Material Real Property fee owned by the Company and the other Loan Parties.
(c)    Schedule 5.08(c) lists completely and correctly as of the Closing Date all Material Real Property leased by the Company and the other Loan Parties and the lessors thereof.

Section 5.09.    Environmental Compliance.  Except as disclosed on Schedule 5.09 and except as to matters that would not reasonably be likely to have a Material Adverse Effect:
(a)    To the knowledge of a Responsible Officer of the Company, the facilities and properties currently owned, leased or operated by the Company, or by any of its respective Restricted Subsidiaries (the “Properties”), do not contain any Hazardous Materials in amounts or concentrations which (i) constitute a violation of, or (ii) would reasonably be expected to give rise to liability under, any applicable Environmental Law.
(b)    None of the Company, nor any of its Restricted Subsidiaries, has received any written notice of violation, alleged violation, non-compliance, liability or potential liability regarding compliance with or liability under Environmental Laws with regard to any of the Properties or the business operated by the Company or by any of its Restricted Subsidiaries (the “Business”).
(c)    To the knowledge of a Responsible Officer of the Company, Hazardous Materials have not been transported or disposed of from the Properties by the Company or any Restricted Subsidiary in violation of, or in a manner or to a location which would reasonably be expected to give rise to liability under, any applicable Environmental Law, nor have any Hazardous Materials been generated, treated, stored or disposed of by the Company or any Restricted Subsidiary at or under any of the Properties in violation of, or in a manner that would reasonably be expected to give rise to liability under, any applicable Environmental Law.
(d)    No judicial proceeding or governmental or administrative action is pending or, to the knowledge of a Responsible Officer of the Company, threatened in writing under any Environmental Law to which the Company, or any of its Restricted Subsidiaries is or, to the knowledge of a Responsible Officer of the Company, will be named as a party or with respect to the Properties or the Business, nor are there any consent decrees or other decrees, consent orders, administrative orders 


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or other orders, or other similar administrative or judicial requirements outstanding under any Environmental Law with respect to the Properties or the Business.
(e)    To the knowledge of a Responsible Officer of the Company, there has been no release or threat of release of Hazardous Materials at or from the Properties, or arising from or related to the operations of the Company, or any of its Restricted Subsidiaries in connection with the Properties or otherwise in connection with the Business, in violation of or in amounts or in a manner that would reasonably be expected to give rise to liability under any applicable Environmental Laws.
(f)    The Company, and each of its Restricted Subsidiaries, has obtained (or in a timely manner applied for), and is in compliance with, all Environmental Permits required for its business, as currently conducted, and all such Environmental Permits are in full force and effect.

Section 5.10.    Insurance.
(a)    The properties of the Company and its Restricted Subsidiaries are insured with financially sound and reputable insurance companies, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Company or the applicable Restricted Subsidiary operates.
(b)    As to any Building located on Material Real Property and constituting Collateral, all flood hazard insurance policies required hereunder have been obtained and remain in full force and effect, and the premiums thereon have been paid in full.

Section 5.11.    Taxes.  The Company and its Restricted Subsidiaries have timely filed all applicable US Federal, state, foreign and other material tax returns and reports required to be filed, and have timely paid all US Federal, state, foreign and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable except (a) those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP, if required, or (b) where failure to do any of the foregoing would not reasonably be expected to result in a Material Adverse Effect; no material tax Lien has been filed which would not be permitted under Section 7.1 and, to the knowledge of a Responsible Officer of the Company, no material claim is being asserted, with respect to any material tax, fee or other charge which would reasonably be expected to result in a Material Adverse Effect.

Section 5.12.    ERISA Compliance.  Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect:
(a)    Each Plan is in material compliance in all respects with the applicable provisions of ERISA, the Code and other Federal or state Laws (except that with respect to any Multiemployer Plan which is a Plan, such representation is deemed made only to the knowledge of a Responsible Officer of the Company), and each Foreign Plan is in material compliance in all respects with the applicable provisions of Laws applicable to such Foreign Plan.
(b)    There has been no nonexempt “prohibited transaction” (as defined in Section 406 of ERISA) or violation of the fiduciary responsibility rules with respect to any Plan.
(c)    (i) As of the Closing Date, no ERISA Event has occurred or is reasonably expected to occur; and (ii) no Pension Plan has any Unfunded Pension Liability.


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Section 5.13.    Subsidiaries.  As of the Closing Date, the Company has no Subsidiaries other than those specifically disclosed in Schedule 5.13.

Section 5.14.    Margin Regulations; Investment Company Act.
(a)    The Company is not engaged and will not engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock.
(b)    Neither the Company nor any Restricted Subsidiary is or is required to be registered as an “investment company” under the Investment Company Act of 1940.

Section 5.15.    Disclosure.  No report, financial statement, certificate or other information (other than projections and other forward looking information and information of a general economic or industry nature) furnished in writing by or on behalf of any Loan Party to the Administrative Agent, the Collateral Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document, taken as whole with any other information furnished or publicly available, contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not materially misleading as of the date when made or delivered; provided that, with respect to any forecast, projection or other statement regarding future performance, future financial results or other future developments, the Company represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time of delivery of such information (it being understood that any such information is subject to significant uncertainties and contingencies, many of which are beyond the Company’s control, and that no assurance can be given that the future developments addressed in such information can be realized, that actual results may differ and that such differences may be material).

Section 5.16.    Compliance with Laws.  The Company and each Restricted Subsidiary is in compliance in all material respects with the requirements of all Laws (including any zoning, building, ordinance, code or approval or any building or mining permits and all orders, writs, injunctions and decrees applicable to it or to its properties), except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith would not reasonably be expected to have a Material Adverse Effect.

Section 5.17.    Anti-Corruption; Sanctions; Terrorism Laws.
(a)    None of the Company, any Restricted Subsidiary nor, to the knowledge of a Responsible Officer of the Company, after due inquiry, any director, officer, agent, employee or Affiliate of the Company or any Restricted Subsidiary is (i) a person on the list of “Specially Designated Nationals and Blocked Persons” or (ii) subject of any active sanctions administered or enforced by the U.S. Department of State or the U.S. Department of Treasury (including the Office of Foreign Assets Control) or any other applicable governmental authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Laws”); and the Company will not directly or, to the knowledge of a Responsible Officer of the Company, after due inquiry, indirectly use the proceeds of the Loans for the purpose of financing the activities of any Person that is the subject of, or in any country or territory that at such time is the subject of, any Sanctions.
(b)    The Company and each Restricted Subsidiary is in compliance, in all material respects, with the (i) Trading with the Enemy Act, as amended, and each of the foreign assets control 


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regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, (ii) the USA PATRIOT Act (Title III of Pub. L. 107-56), as amended (the “PATRIOT Act”), (iii) Sanctions Laws and (iv) Anti- Corruption Laws.
(c)    No part of the proceeds of any Loan will be used, directly or, to the knowledge of a Responsible Officer of the Company, after due inquiry, indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations and orders (collectively, “Anti-Corruption Laws”).

Section 5.18.    Intellectual Property; Licenses, Etc.  The Company and its Restricted Subsidiaries own, or possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights (collectively, “IP Rights”) that are reasonably necessary for the operation of their respective businesses, except where the failure to own or possess the right to use such IP Rights would not reasonably be expected to have a Material Adverse Effect.  To the knowledge of a Responsible Officer of the Company, the use of such IP Rights by the Company or any Restricted Subsidiary does not infringe upon any rights held by any other Person except for any infringement that would not reasonably be expected to have a Material Adverse Effect.  Except as specifically disclosed in Schedule 5.18, no claim or litigation regarding any of the foregoing is pending or, to the knowledge of a Responsible Officer of the Company, threatened in writing, which would reasonably be expected to have a Material Adverse Effect.

Section 5.19.    Collateral Documents.
(a)    (i) Each Collateral Document (other than each Mortgage), when executed and delivered, is effective to create in favor of the Collateral Agent (for the benefit of the Secured Parties), a legal, valid and enforceable security interest in the Collateral described therein and the Collateral Agent has been authorized (and is hereby authorized) to make all filings of UCC-1 and as-extracted collateral financing statements in the appropriate filing office necessary or desirable to fully perfect the Collateral Agent’s security interest in such Collateral described therein which can be perfected by filing a UCC-1 financing statement in the appropriate filing office, and (ii) with respect to the security interest created in the Collateral pursuant to each Collateral Document (other than each Mortgage), upon such filings (or, with respect to possessory Collateral, upon the taking of possession by the Collateral Agent (or by the Term Loan Agent as bailee for the Collateral Agent pursuant to the Term Loan Intercreditor Agreement, if applicable) of any such Collateral which may be perfected by possession), such security interests will constitute perfected First Priority Liens on, and security interests in, all right, title and interest of the debtor party thereto in the Collateral described therein that can be perfected by filing a UCC-1 or as-extracted financing statement, as applicable, in the appropriate filing office or by delivery, in the case of possessory Collateral.
(b)    Each of the Mortgages, when executed and delivered, will be effective to create in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid and enforceable (subject to equity and creditors’ rights generally) lien on the Material Real Property described therein and such security interests will constitute, upon such Mortgage being and recorded in the appropriate filing offices, First Priority Liens on such Material Real Property, subject to Permitted Real Estate Encumbrances.


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Section 5.20.    Mines.  Schedule 5.20 sets forth a complete and accurate list of any Mine (including addresses and the owner or lessor thereof) owned or operated by the Company or any of its Restricted Subsidiaries as of the Closing Date and included or purported to be included in the Collateral pursuant to the Collateral Documents.

Section 5.21.    Solvency.  The Company and its Restricted Subsidiaries are and, upon the incurrence of any Obligation by any Loan Party on any date on which this representation and warranty is made, will be, on a consolidated basis, Solvent.

Section 5.22.    Labor Relations.  Neither the Company nor any of its Restricted Subsidiaries is engaged in any unfair labor practice that would reasonably be expected to have a Material Adverse Effect.  There is (a) no unfair labor practice complaint pending against the Company or any of its Restricted Subsidiaries, or to the knowledge of a Responsible Officer of the Company, threatened in writing against any of them before the National Labor Relations Board and no grievance or arbitration proceeding arising out of or under any collective bargaining agreement that is so pending against the Company or any of its Restricted Subsidiaries or to the knowledge of a Responsible Officer of the Company, threatened in writing against any of them, (b) no strike or work stoppage in existence or, to the knowledge of a Responsible Officer of the Company, threatened in writing involving the Company or any of its Restricted Subsidiaries, and (c) to the knowledge of a Responsible Officer of the Company, no union representation question existing with respect to the employees of the Company or any of its Restricted Subsidiaries and, to the knowledge of a Responsible Officer of the Company, no union organization activity that is taking place, except (with respect to any matter specified in clause (a), (b) or (c) above, either individually or in the aggregate) such as is not reasonably likely to have a Material Adverse Effect.

Section 5.23.    Agreements.  Neither the Company nor any of its Restricted Subsidiaries is a party to any agreement, instrument or other document or subject to any corporate or other constitutional restriction, or any restriction under its Organizational Documents, that has resulted, or would reasonably be expected to result, in a Material Adverse Effect.

Section 5.24.    Senior Debt.  The Facility constitutes “Senior Debt”, as defined in any Intercreditor Agreement, for purposes of such Intercreditor Agreement.

Section 5.25.    Use of Proceeds.  The Borrowers will use the proceeds of the Loans solely as provided for in Section 6.11.

ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied (other than in respect of contingent obligations, indemnities and expenses related thereto not then payable or in existence as of the later of the Termination Date or the Letter of Credit Expiration Date), or any Letter of Credit shall remain outstanding, each Loan Party shall, and shall cause each of its respective Subsidiaries to:

Section 6.01.    Financial Statements.  Deliver to the Administrative Agent for distribution by the Administrative Agent to each Lender, in form and detail reasonably satisfactory to the Administrative Agent:
(a)    as soon as available, but in any event within 120 days after the end of each fiscal year of the Company (or, if earlier, by the date that the Annual Report on Form 10-K of the Company 


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for such fiscal year would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form) (commencing with the fiscal year ended December 31, 2016), a consolidated balance sheet of the Company and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, changes in shareholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP; provided that the Company shall not be required to include comparable prior period financial statements and related information in any annual report prior to the quarterly report for the quarter ended September 30, 2017; such consolidated statements shall be audited and accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit (other than with respect to or resulting from the upcoming maturity of any Loans under this Agreement or the Term Loan Credit Documents, occurring within one year from the time such opinion is delivered); and
(b)    as soon as available, but in any event within 60 days after the end of each of the first three fiscal quarters of each fiscal year of the Company (or, if earlier, by the date that the Quarterly Report on Form 10-Q of the Company for such fiscal quarter would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form) (commencing with the fiscal quarter ended March 31, 2017), a consolidated balance sheet of the Company and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of income or operations, changes in shareholders’ equity and cash flows for such fiscal quarter and for the portion of the Company’s fiscal year then ended, setting forth in each case in comparative form commencing with the fiscal quarter ended September 30, 2017, the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail; such consolidated statements shall be certified by a Responsible Officer of the Company as fairly presenting in all material respects the financial condition, results of operations, changes in shareholders’ equity and cash flows of the Company and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes.

Section 6.02.    Certificates; Other Information.  Deliver to the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent:
(a)    concurrently with the delivery of the financial statements referred to in Section 6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal quarter ended June 30, 2017), (i) a duly completed Compliance Certificate signed by a Responsible Officer of the Company, which, if a Liquidity Period has occurred and is continuing at such time, shall include a reasonably detailed calculation of the financial covenant in Section 7.17 (ii) a detailed reconciliation of such financial information for the Company and its Restricted Subsidiaries, on the one hand, and the Company’s Unrestricted Subsidiaries, on the other hand; provided that, for the avoidance of doubt, any such reconciliation of the financial statements referred to in Section 6.01(a) shall not be audited.
(b)    promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Company with the SEC, or any Governmental Authority succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its shareholders generally, as the case may be.
(c)    promptly, such additional information regarding the business, financial or corporate affairs of the Company or any Subsidiary, or compliance with the terms of the Loan 


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Documents, as the Administrative Agent or any Lender may from time to time reasonably request and which the Company determines, in its sole discretion, may be provided to a third-party without causing a breach of any law, rule, regulation or contractual obligation of the Company or any Subsidiary.
(d)    as soon as available, not later than 90 days after the end of each fiscal year of the Company, a copy of summary projections by the Company of the operating budget and cash flow budget of the Company and its Subsidiaries for the succeeding fiscal year, such projections to be accompanied by a certificate of a Responsible Officer of the Company to the effect that such projections have been prepared based on assumptions believed by the Company to be reasonable (it being understood that any such information is subject to significant uncertainties and contingencies, many of which are beyond the Company’s control, and that no assurance can be given that the future developments addressed in such information can be realized).
(e)    [Reserved];
(f)    a Borrowing Base Certificate substantially in the form of Exhibit G, as of the date required to be delivered or so requested, in each case with supporting documentation:
(i)    (A) monthly (as of the last day of each month (or, if such day is not a Business Day, as of the Business Day immediately preceding such last day)), commencing for the month ended March 31, 2017, on or before the twentieth day of each month or (B) during any Increased Reporting Period, weekly, as applicable, on or before the third Business Day of each week (provided, in the case of this clause (B), (1) Inventory reporting shall be updated on a bi- weekly basis and (2) ineligibility in respect of the eligibility criteria set forth in the definitions of “Eligible Accounts” and “Eligible Inventory” shall be reported on a monthly basis), in each case, which Borrowing Base Certificate shall reflect the Collateral contained in the Borrowing Base (including a breakdown of Eligible Inventory constituting Clean Coal and Raw Coal) updated as of last day of each month or week, as applicable, in each case, together with:
(u) an Accounts receivable aging report showing Accounts outstanding aged from the invoice date as follows: 1 to 30 days, 31 to 60 days, 61 to 90 days and 91 days or more, accompanied by a comparison to the prior month’s or week’s Accounts receivable aging report and supporting detail and documentation (including, without limitation, aged totals and customer names) as shall be reasonably satisfactory to the Administrative Agent
(v) a summary of unbilled shipments of each of the Borrowers, which shall include dates of shipment and customer names and accompanied by such supporting detail and documentation as shall be reasonably satisfactory to the Administrative Agent
(w) a roll-forward of billed Accounts of the Borrowers showing the ending balance as of the date of the most recently delivered Borrowing Base Certificate, billings, cash receipts, credit memos, other debit adjustments, and other credit adjustments for the current period, and the ending balance as of the date of the most recently delivered Borrowing Base Certificate;
(x) a summary of Inventory by location and type of each of the Loan Parties, accompanied by such supporting detail and documentation (including, without limitation, the name of the location of such Inventory, the quantity of Coal, the cost per ton and the total value thereof) as shall be reasonably satisfactory to the Administrative Agent;


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(y) a reconciliation of the Accounts receivable aging report and Inventory reports of each of the Loan Parties to the general ledger of such Loan Party; and
(z) with respect to Liens granted in favor of any surety on ABL Priority Collateral, written notice of entry into such arrangements.
(ii)    at any other time when the Administrative Agent reasonably believes that the then existing Borrowing Base Certificate is materially inaccurate and has delivered to the Company a written statement describing the material inaccuracy, as soon as reasonably available after such request, in each case with supporting documentation as the Administrative Agent may reasonably request, such other reports, statements and reconciliations with respect to the Borrowing Base or Collateral of any or all Loan Parties as the Administrative Agent shall from time to time reasonably request;
(g)    promptly (and in any event within three Business Days) after any Loan Party has knowledge that Accounts of the Loan Parties in an aggregate face amount of $5,000,000 or more cease to be Eligible Accounts, notice of such occurrence.
Documents required to be delivered pursuant to clauses (a) and (b) of Section 6.01 or clause (b) of Section 6.02 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System.
The Borrowers hereby acknowledge that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a “Public Lender”).  The Company hereby agrees that so long as the Company is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (a) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (b) by marking Borrower Materials “PUBLIC,” the Company shall be deemed to have authorized the Administrative Agent, the Arrangers and the Lenders to treat the Borrower Materials as not containing any material non-public information with respect to the Company or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent the Borrower Materials constitute Information, they shall be treated as set forth in Section 11.07); and (c) all Borrower Materials marked “PUBLIC” or not marked as containing material non-public information are permitted to be made available through a portion of the Platform designated “Public Investor.” Notwithstanding the foregoing, the Company shall not be under any obligation to mark the Borrower Materials “PUBLIC” or as containing material non-public information.  In connection with the foregoing, each party hereto acknowledges and agrees that the foregoing provisions are not in derogation of their confidentiality obligations under Section 11.07.

Section 6.03.    Notices.  Notify the Administrative Agent (and the Administrative Agent shall promptly provide a copy of such notice to each Lender):
(a)    promptly, after knowledge of a Responsible Officer of the Company, of the occurrence of any Default or Event of Default hereunder or the occurrence of any “Default” or “Event of Default” under the Term Loan Credit Documents;


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(b)    promptly, after knowledge of a Responsible Officer of the Company, of any event which would reasonably be expected to have a Material Adverse Effect;
(c)    of the occurrence of any ERISA Event that, individually or in the aggregate, would be reasonably likely to have a Material Adverse Effect, as soon as possible and in any event within 30 days after a Responsible Officer of the Company knows or has obtained written notice thereof;
(d)    promptly, upon the filing or commencement of, or any written and known threat or written and known notice of intention of any person to file or commence, any action, suit, proceeding, claim or dispute whether at law or in equity or otherwise by or before any Governmental Authority, (i) against the Company or any of its Restricted Subsidiaries or against any of their properties or revenues that has had, or would reasonably be expected to result in, a Material Adverse Effect or (ii) with respect to this Agreement or any other Loan Document;
(e)    within 10 Business Days after any Borrower or any Guarantor changing its legal name, jurisdiction of organization or the location of its chief executive office or sole place of business.
(f)    promptly, after knowledge of a Responsible Officer of the Company, as to any Building located on Material Real Property and constituting Collateral, any redesignation of any such property on which such Building is located into or out of a special flood hazard area.
Each notice pursuant to this Section 6.03 (which may be in electronic form) shall be accompanied by a statement of a Responsible Officer of the Company setting forth details of the occurrence referred to therein and stating what action the applicable Borrowers have taken and proposes to take with respect thereto.

Section 6.04.    Payment of Obligations.  Except where failure to do so would not reasonably be expected to result in a Material Adverse Effect, with respect to the Company and each of its Restricted Subsidiaries, pay their Indebtedness and other obligations promptly and in accordance with their terms and pay and discharge all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by the Company or such Subsidiary.

Section 6.05.    Preservation of Existence.  Preserve, renew and maintain in full force and effect its legal existence except in a transaction permitted by Section 7.04.

Section 6.06.    Maintenance of Properties.
(a)    Maintain, preserve and protect all of its material properties and material equipment, including Collateral, necessary (in the Company’s good faith judgment) to the operation of its business as then being conducted in the condition maintained by prudent operators in the industry, subject to the depletion of coal reserves in the ordinary course of business.
(b)    Except to the extent the failure to do so would not reasonably be expected to have a Material Adverse Effect, keep in full force and effect all of its material leases and other material contract rights, and all material rights of way, easements and privileges necessary (in the Borrower’s good faith judgment) for the proper operation of the Mines then being operated by the Borrower or a Restricted Subsidiary and included or purported to be included in the Collateral by the Collateral Documents.


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Section 6.07.    Maintenance of Insurance.
(a)    Maintain with financially sound and reputable insurance companies, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Company or the applicable Restricted Subsidiary operates, except to the extent the failure to do so would not reasonably be expected to have a Material Adverse Effect.
(b)    With respect to any Building located on Material Real Property and constituting Collateral, the Company shall and shall cause each appropriate Loan Party to (i) maintain fully paid flood hazard insurance on any such Building that is located in a special flood hazard area, on such terms and in such amounts as required by The National Flood Insurance Reform Act of 1994 and (ii) upon the reasonable request of the Administrative Agent, furnish to the Administrative Agent an insurance certificate evidencing the renewal (and payment of renewal premiums therefor) of all such policies prior to the expiration or lapse thereof (or at such other time acceptable to the Administrative Agent).  The Company shall cooperate with the Administrative Agent’s reasonable request for any information reasonably required by the Administrative Agent to comply with The National Flood Insurance Reform Act of 1994, as amended.
(c)    Cause the Administrative Agent to at all times be named as lender’s loss payee and an additional insured (but without any liability for premiums), as applicable, under each insurance policy maintained under Section 6.07(a) providing coverage with respect to any Collateral (provided that the Company shall use commercially reasonable efforts to cause all property and casualty insurance policies with respect to the Material Real Property to include, if customary in the applicable jurisdiction, a “standard” or “New York” lender’s loss payable endorsement, in form and substance reasonably satisfactory to the Administrative Agent).  The Borrowers shall use commercially reasonable efforts to cause each such insurance policy to provide, if customary in the applicable jurisdiction, that it shall not be canceled or not renewed upon less than 30 days’ prior written notice thereof by the insurer to the Administrative Agent.

Section 6.08.    Compliance with Laws.  Comply in all respects with the requirements of all Laws (including the PATRIOT Act, Sanctions Laws, the Anti-Corruption Laws and Environmental Laws) and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) such requirement of law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith would not reasonably be expected to have a Material Adverse Effect (or, in the case of compliance with the PATRIOT Act, Sanctions Laws and the Anti-Corruption Laws, the failure to comply therewith is not material).

Section 6.09.    Books and Records.  (a) Maintain proper books of record and account, in conformity with GAAP, in which in all material respects full, true and correct entries in conformity with GAAP shall be made of all material financial transactions and matters involving the assets and business of the Company or such Restricted Subsidiary, as the case may be; and (a) maintain such books of record and account in material conformity with all material requirements of any Governmental Authority having regulatory jurisdiction over the Company or such Restricted Subsidiary, as the case may be.

Section 6.10.    Inspection Rights; Field Exams; Appraisals.  (a) Upon reasonable advance written notice, permit representatives and independent contractors of the Administrative Agent to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof 


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or abstracts therefrom (except to the extent (i) any such access is restricted by a Requirement of Law or (ii) any such agreements, contracts or the like are subject to a written confidentiality agreement with a non-Affiliate that prohibits the Company or any its Subsidiaries from granting such access to the Administrative Agent; provided that, with respect to such confidentiality restrictions affecting the Company or any of its Restricted Subsidiaries, a Responsible Officer of the Company is made available to the Administrative Agent to discuss such confidential information to the extent permitted, subject to Section 11.07 of this Agreement), and to discuss the business, finances and accounts with its officers and independent public accountants at such reasonable times during normal business hours and as often as may be reasonably desired, provided that the Administrative Agent shall give the Company reasonable advance written notice prior to any contact with such accountants and give the Company the opportunity to participate in such discussions, provided further that the costs of one such visit per calendar year (or an unlimited amount if an Event of Default has occurred and is continuing) for the Administrative Agent and their representatives as a group shall be the responsibility of the Company and, absent an Event of Default, the Administrative Agent and their representatives as a group shall visit no more often than twice in any twelve month period.  Notwithstanding the foregoing, Mine visits are only permitted if the representatives and independent contractors of the Administrative Agent agree to be bound by and adhere to all Requirements of Law and any policy of the Company.
(b)    From time and from time to time during regular business hours, upon reasonable advance written notice, permit any Approved Appraisers or Approved Field Examiners to visit the properties of the Loan Parties to, at the Borrowers’ expense, conduct field examinations and inventory appraisals in connection with the Borrowers’ computation of the Borrowing Base; provided that, so long as an Increased Reporting Period is not in effect, not more than two field exams (one of which shall be an on-site field exam and the other shall be a desktop field exam) and two inventory appraisals may be conducted at the Borrowers’ expense per twelve-month period; provided further, during any Increased Reporting Period, one additional field exam and one additional inventory appraisal may be conducted at the Borrowers’ expense in any twelve-month period.  Notwithstanding the foregoing, following the occurrence and during the continuation of an Event of Default, such field examinations and inventory appraisals set forth above may be conducted at the Borrowers’ expense as many times as the Administrative Agent shall consider reasonably necessary.  In addition, the Borrowers shall have the right (but not the obligation), at the Borrowers’ expense, at any time and from time to time (but not more than once per twelve-month period) to provide the Administrative Agent with additional field examinations and additional inventory appraisals of any or all of the Collateral, prepared in a form and on a basis reasonably satisfactory to the Administrative Agent, in which case such field examination or such inventory appraisal shall be used in connection with the calculation of the Borrowing Base hereunder.  Each inventory appraisal after the Closing Date shall be performed by any Approved Appraiser.  Each field examination after the Closing Date shall be performed by any Approved Field Examiner.  Notwithstanding the foregoing, Mine visits are only permitted if the representatives and independent contractors of the Administrative Agent agree to be bound by and adhere to all Requirements of Law and any policy of the Company.

Section 6.11.    Use of Proceeds.
(a)    Use the proceeds of the Credit Extensions solely (i) to pay Transaction Costs and (ii) to fund working capital needs and other general corporate purposes of the Company and its Subsidiaries, including the financing of Capital Expenditures, Permitted Acquisitions, other permitted Investments, Restricted Payments and any other purpose not prohibited by the Loan Documents.
(b)    None of the Borrowers shall, directly or indirectly, use the proceeds of any Credit Extension or lend, contribute, or otherwise make available such proceeds to any Subsidiary, joint venture 


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partner, or other Person (i) to fund, finance, or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding, is the target of Sanctions or (ii)    in any other manner that would result in the violation of Sanctions applicable to any party to this Agreement.

Section 6.12.    Additional Guarantors.  If the Company or any of its Restricted Subsidiaries acquires or creates another Subsidiary after the Closing Date which by virtue of the definition of Guarantor is required to be a Guarantor then (unless designated as an Unrestricted Subsidiary pursuant to Section 6.13) the Company shall cause, within 60 days (or such later date as the Administrative Agent agrees) of such acquisition or creation, any such Subsidiary to become a Guarantor by executing and delivering to the Administrative Agent an Assumption Agreement, or such other document as the Administrative Agent shall deem appropriate for such purpose.

Section 6.13.    Unrestricted Subsidiaries.  Any Restricted Subsidiary may be designated as an Unrestricted Subsidiary and any Unrestricted Subsidiary may be designated as a Restricted Subsidiary upon delivery to the Administrative Agent of written notice from the Company; provided that (a) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing, (b) immediately after giving effect to such designation, the Payment Conditions shall have been satisfied, (c) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” for purposes of any of the Term Loan Credit Documents or any documents evidencing any Permitted Refinancing Indebtedness or any Subordinated Indebtedness or Junior Lien Indebtedness and (d) each Restricted Subsidiary to be designated as an Unrestricted Subsidiary and its Subsidiaries has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness other than Non-Recourse Debt.  The designation of any Restricted Subsidiary as an Unrestricted Subsidiary shall constitute an Investment under Section 7.02 by the Company therein at the date of designation in an amount equal to the net book value of the Company’s investment therein.  The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness or Liens of such Restricted Subsidiary existing at such time.

Section 6.14.    Preparation of Environmental Reports.  If an Event of Default caused by reason of a breach under Sections 6.08 or 5.09 with respect to compliance with Environmental Laws shall have occurred and be continuing, at the reasonable request of the Required Lenders through the Administrative Agent, provide to the Lenders within 60 days after such request (or such longer period as may be agreed) information regarding the nature of the breach and the remedial action being taken or proposed to be taken with respect to the Properties which are the subject of the breach.

Section 6.15.    Certain Long Term Liabilities and Environmental Reserves.  To the extent applicable and required by GAAP, maintain adequate reserves for (a) future costs associated with any lung disease claim alleging pneumoconiosis or silicosis or arising out of exposure or alleged exposure to coal dust or the coal mining environment, (b) future costs associated with retiree and health care benefits, (c)    future costs associated with reclamation of disturbed acreage, removal of facilities and other closing costs in connection with closing its mining operations and (d) future costs associated with other potential environmental liabilities.

Section 6.16.    Covenant to Give Security.
(a)    Personal Property including IP of New Guarantors.  Concurrently with any Restricted Subsidiary becoming a Guarantor pursuant to Section 6.12 (or a later date to which the Administrative Agent agrees), cause any such Restricted Subsidiary to (i) duly execute and deliver to the Collateral Agent counterparts to the Security Agreement or such other document as the 


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Administrative Agent or the Collateral Agent shall reasonably deem appropriate for such purpose, (ii) to the extent that any Equity Interests in, or owned by, such Restricted Subsidiary is required to be pledged pursuant to the Security Agreement, deliver stock certificates, if any, representing such Equity Interests accompanied by undated stock powers or instruments of transfer executed in blank, (iii) to the extent that any Intellectual Property (as defined in the Security Agreement) owned by a Loan Party is required to be pledged pursuant to the Security Agreement but has not been pledged, deliver any supplements to the IP Security Agreements reasonably requested by the Administrative Agent or the Collateral Agent and (iv) comply with all other requirements of the Security Agreement with respect to the Collateral of such Guarantor.
(b)    Real Property Acquired by Borrower and Guarantors.
(i)    Material Real Property Mortgages and Flood Insurance.  If the Company or any of its Restricted Subsidiaries acquires any additional Material Real Property after the Closing Date (including by virtue of any previously excluded real property becoming Material Real Property under the definition thereof after the Closing Date) the Company shall cause, within the latest of (x) 90 days of such acquisition and (y) a later date to which the Administrative Agent agrees, cause the Company or such Restricted Subsidiary to deliver (A) executed counterparts of one or more Mortgages on such Material Real Property in a form appropriate for recording in the applicable recording office, (B) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Building located on such Material Real Property and constituting Collateral and, if any such Building is located in special flood hazard area, (1) a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each Loan Party relating thereto and (2) evidence of applicable flood insurance as required by Section 6.07(b)(i) if such Material Real Property constitutes Collateral, (C) legal opinions from counsel in such jurisdiction as the Material Real Property is located, each in form and substance reasonably satisfactory to Administrative Agent or the Collateral Agent, (D) to the extent required by the Administrative Agent, evidence of the filing of as-extracted UCC-1 financing statements in the appropriate jurisdiction and (E) payment by the Company of all mortgage recording taxes and related charges required for the recording of such Mortgages unless, in the judgment of the Administrative Agent, delivery of such materials is unnecessary to ensure the Secured Parties benefit from a perfected First Priority security interest (subject to Permitted Real Estate Encumbrances) in such Material Real Property in favor of the Collateral Agent and such flood insurance (it is understood that in lieu of any new Mortgage, mortgage supplements or any other security documents may be delivered if reasonably acceptable to the Administrative Agent).
(ii)    Consents Related to Leaseholds Concerning Material Real Property.  With respect to any leasehold interest of the Company or any of its Restricted Subsidiary that would constitute Material Real Property but for the need to obtain the consent of another Person (other than the Company or any Controlled Subsidiary) in order to grant a security interest therein, use commercially reasonable efforts to obtain such consent for no more than (x) the 90 days following such acquisition and (y) 150 days following the Closing Date, provided that nothing herein shall be construed as requiring the Company or any Restricted Subsidiary to pay any sums to the applicable lessor other than immaterial or incidental fees and expenses (it is understood, for avoidance of doubt, that, without limiting the foregoing obligations of the Company set forth in this Section 6.16(b)(ii), any failure to grant a security interest in any such leasehold interest as a result of a failure to obtain a consent shall not be a Default hereunder, and, for avoidance of doubt, the Company and its Restricted Subsidiaries shall no longer be 


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required to use commercially reasonable efforts to obtain any such consent after the above-mentioned time periods).
(c)    Personal Property (including IP) Acquired by Borrower or Guarantors.    Within 30 days of the date that the financial statements referred to in Section 6.01(a) (b) and (c) are required to be delivered (or a later date to which the Administrative Agent agrees), shall, in the case of the Company, or cause any such Restricted Subsidiary otherwise, (i) to the extent that any Equity Interests in, or owned by, a Loan Party is required to be pledged pursuant to the Security Agreement but has not been pledged, deliver stock certificates, if any, representing such Equity Interests accompanied by undated stock powers or instruments of transfer executed in blank to the Collateral Agent and execute and deliver to the Collateral Agent supplements to the Security Agreement or such other document as the Administrative Agent shall reasonably deem appropriate to pledge any such Equity Interests, (ii) to the extent that any Intellectual Property (as defined in the Security Agreement) owned by a Loan Party is required to be pledged pursuant to the Security Agreement but has not been pledged, deliver any supplements to the IP Security Agreements reasonably requested by the Administrative Agent and (iii) to the extent that a Lien on any asset of a Loan Party is required to be perfected pursuant to the Security Agreement but has not been perfected, take such additional actions as may be required pursuant to the Security Agreement in order to perfect the Lien of the Collateral Agent on such asset.
(d)    Further Assurances.  Subject to any applicable limitation in any Collateral Documents, upon request of the Administrative Agent, at the expense of the Company, promptly execute and deliver any and all further instruments and documents and take all such other action as the Administrative Agent may reasonably deem necessary or desirable in obtaining the full benefits of, or (as applicable) in perfecting and preserving the Liens of, the Collateral Documents, including the filing of financing statements necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to perfect any security interests created under the Collateral Documents.
(e)    Collateral Principles.  Notwithstanding anything to the contrary in any Loan Document, (i) the Administrative Agent in its discretion may grant extensions of time for the creation or perfection of security interests in, and Mortgages on, or taking other actions with respect to, particular assets where it reasonably determines in consultation with the Company, that the creation or perfection of security interests and Mortgages on, or taking other actions, cannot be accomplished without undue delay, burden or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents and (ii) any Liens required to be granted from time to time pursuant to Collateral Documents and this Agreement on assets of the Loan Parties to secure to the Obligations shall exclude the Excluded Assets.
(f)    Junior Lien Indebtedness Guarantees and Collateral.  Without limitation of (and subject to) any provision in any Intercreditor Agreement, if the Junior Collateral Trustee or any holder of Junior Lien Indebtedness receives any additional guaranty or any additional collateral in connection with the Junior Lien Indebtedness after the Closing Date, without limitation of any Event of Default that may arise as a result thereof, the Loan Parties shall, concurrently therewith, cause the same to be granted to the Administrative Agent or the Collateral Agent, as applicable, for its own benefit and the benefit of the Secured Parties.

Section 6.17.    Information Regarding Collateral.  Concurrently with the delivery of the financial statements referred to in Section 6.01(a) and (b), deliver to the Administrative Agent and the Collateral Agent a Collateral Questionnaire Supplement to the extent necessary to correctly reflect the information set forth therein as of such date.


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Section 6.18.    Senior Debt.  Cause the Facility to at all times be considered “Senior Debt”, as defined in the Intercreditor Agreement, for purposes of such Intercreditor Agreement.

Section 6.19.    Administration of Accounts.  (a) If an Account of any Loan Party includes a charge for any taxes, the Administrative Agent is authorized, in its reasonable discretion, to pay the amount thereof to the proper taxing authority for the account of such Loan Party if such Loan Party does not do so after written notice from the Administrative Agent and to charge such Loan Party therefor; provided, however, that neither the Administrative Agent nor the Lenders shall be liable for any Taxes that may be due from the Loan Parties or with respect to any Collateral.
(b)    During the continuance of an Event of Default, the Administrative Agent shall have the right at any time, in the name of the Administrative Agent, any designee of the Administrative Agent or any Loan Party, to verify the validity, amount or any other matter relating to any Accounts of any Loan Party by mail, telephone or otherwise.  The Loan Parties shall cooperate fully with the Administrative Agent in an effort to facilitate and promptly conclude any such verification process.

Section 6.20.    Cash Management System.
(a)    (i) Within 60 days after the Closing Date (or such later date as the Administrative Agent may specify in its reasonable discretion), and at all times thereafter, each of the Loan Parties shall enter into and maintain a Blocked Account Agreement, satisfactory in form and substance to the Administrative Agent in its reasonable discretion, with respect to each of its Deposit Accounts, Securities Account or Commodities Accounts (other than any Excluded Account) (each such Deposit Account, Securities Account or Commodities Account, a “Control Account”) and (ii) within 30 days of the establishment of any new Control Account (or such later date as the Administrative Agent may specify in its reasonable discretion), cause such Control Account (other than Excluded Accounts) to be subject to a Blocked Account Agreement.  No Loan Party shall direct any Account Debtor, or any customer, to make payments on Accounts to any Deposit Account other than the Control Accounts and the ABL Cash Collateral Account.
(b)    Subject to the time periods set forth in Section 6.20(a), no Loan Party shall establish or maintain any Securities Account, Commodities Account or Deposit Account that is not a Control Account, in each case, other than any Excluded Accounts or accounts necessary for such Loan Party to comply with Requirements of Law or any court order or any other judgment.
(c)    Each Loan Party hereby acknowledges and agrees that (i) during any Liquidity Period, it shall have no right of withdrawal from the Control Accounts and (ii) the funds on deposit in the Control Accounts shall at all times continue to be collateral security for all of the Obligations.  In the event that, notwithstanding the provisions of this Section 6.200, a Loan Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent, shall not be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall promptly be deposited into the appropriate Control Account or dealt with in such other fashion as such Loan Party may be instructed by the Administrative Agent.
(d)    Without limiting the foregoing, funds on deposit in any Deposit Account or Securities Account under the sole dominion and control of the Administrative Agent may be invested (but the Administrative Agent shall be under no obligation to make any such investment) in Cash Equivalents at the direction of the Administrative Agent and, except during the continuance of a Liquidity Period, the Administrative Agent agrees with the Borrowers to issue entitlement orders for such investments in Cash Equivalents as reasonably requested by the Company; provided, however, 


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that the Administrative Agent shall not have any responsibility for, or bear any risk of loss of, any such investment or income thereon.
(e)    Subject to clause (a) above, any amounts received in the ABL Cash Collateral Account and each other Control Account (other than the L/C Cash Collateral Account) shall be applied, first to payment of all Loans then due, second to the extent otherwise required by the Agreement, to Cash Collateralize all outstanding Letters of Credit, and then as directed by the Company; provided that, if an Event of Default has occurred and is continuing, all amounts in Control Accounts shall be applied pursuant to Section 8.03.
(f)    Notwithstanding the foregoing, the Borrowers shall be permitted to maintain the Designated Term Loan Account (as defined in the Intercreditor Agreement).  The Term Loan Agent shall be the “controlling party” on the Blocked Account Agreement with respect to the Designated Term Loan Account so long as any Term Loan Debt remains outstanding (it being understood and agreed that the Administrative Agent shall also have a Lien on the Designated Term Loan Account and shall become the “controlling party” with respect thereto to the extent no Term Loan Debt remains outstanding).

Section 6.21.    Post-Closing Covenants.  Cause to be delivered or performed the documents and other agreements and actions set forth on Schedule 6.21 within the time frame specified on such Schedule 6.21.

ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied (other than in respect of contingent obligations, indemnities and costs and expenses related thereto not then payable or in existence as of the later of the Termination Date or the Letter of Credit Expiration Date), or any Letter of Credit shall remain outstanding, the Company and each other Borrower shall not, nor shall they permit any of their respective Subsidiaries to, directly or indirectly:

Section 7.01.    Liens.  Create, incur, assume or suffer to exist any Lien upon, any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following (“Permitted Liens”):
(a)    Liens pursuant to any Loan Document;
(b)    Liens existing on the date hereof and (other than any individual Lien that secures obligations of less than $2,000,000) set forth on Schedule 7.01 and any renewals, extensions, modifications, restatements or replacements thereof, provided that (i) the property covered thereby is not changed, (ii) the amount secured or benefited thereby is not increased except with respect to any Permitted Refinancing Increase and (iii) any renewal, extension, modification, restatement or replacement of the obligations secured or benefited thereby is permitted by Section 7.03;
(c)    Liens for taxes not yet due and payable or which are being contested in good faith and by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;


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(d)    landlord’s, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 60 days or which are being contested in good faith and by appropriate proceedings;
(e)    pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation and employee health and disability benefit legislations and deposits securing liability to insurance carriers under insurance or self-insurance arrangements;
(f)    (i) Liens (including deposits) to secure the performance of bids, trade contracts and leases (other than Indebtedness), reclamation bonds, insurance bonds, statutory obligations, surety and appeal bonds, performance bonds, bank guarantees and letters of credit and other obligations of a like nature incurred in the ordinary course of business, (ii) Liens on assets to secure obligations under surety bonds obtained as required in connection with the entering into of federal coal leases or (iii) Liens created under or by any turnover trust; provided that no UCC financing statement has been filed by surety and no other action has been taken to perfect any such Liens of any surety;
(g)    easements, rights-of-way, zoning restrictions, other restrictions, covenants and other non-monetary encumbrances which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(h)    Liens securing attachments or judgments for the payment of money not constituting an Event of Default under Section 8.01(h) or securing appeal or surety bonds related to such attachments or judgments;
(i)    Liens securing Indebtedness of the Company and its Restricted Subsidiaries permitted by Section 7.03(l); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness, any other property which may be incorporated with or into that financed property or any after-acquired title in or on such property and proceeds of the existing collateral in accordance with the instrument creating such Lien, including replacement parts, accessories or enhancements that are affixed to any leased goods and other property financed by the same Person (i.e., cross-collateralization of such property) and (ii) the principal amount of Indebtedness secured by any such Lien shall at no time exceed 100% of the original purchase price of such property at the time it was acquired (it being understood that Liens of the type described in this subsection (i) incurred by a Restricted Subsidiary before such time as it became a Restricted Subsidiary are permitted under this subsection (i));
(j)    Liens on property or assets acquired in a transaction permitted by Section 7.02 or of a Person which becomes a Restricted Subsidiary after the date hereof; provided that (i) such Liens existed at the time such property or assets were acquired or such entity became a Subsidiary and were not created in anticipation thereof, (ii) such Liens do not extend to any other property or assets of such Person (other than the proceeds of the property or assets initially subject to such Lien) or of the Company or any Restricted Subsidiary and (iii) the amount of Indebtedness secured thereby is not increased;
(k)    Liens on the property of the Company or any of its Subsidiaries, as a tenant under a lease or sublease entered into in the ordinary course of business by such Person, in favor of the landlord under such lease or sublease, securing the tenant’s performance under such lease or sublease, as such Liens are provided to the landlord under applicable law and not waived by the landlord;


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(l)    Liens (including those arising from precautionary UCC financing statement filings and those which are security interests for purposes of the Personal Property Securities Act of 2009 (Cth)) with respect to bailments, operating leases or consignment or retention of title arrangements entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(m)    Liens securing Indebtedness permitted under Section 7.03(c), to the extent that the Indebtedness being refinanced was originally secured in accordance with this Section 7.01, provided that such Lien does not apply to any additional property or assets of the Company or any Restricted Subsidiary (other than property or assets within the scope of the original granting clause or the proceeds of the property or assets subject to such Lien);
(n)    Liens securing Indebtedness or other obligations of a non-Guarantor Restricted Subsidiary to any Borrower or a Guarantor;
(o)    leases, subleases, licenses and rights-of-use granted to others incurred in the ordinary course of business and that do not materially and adversely affect the use of the property encumbered thereby for its intended purpose;
(p)    (i) Liens in favor of a banking institution arising by operation of law or any contract encumbering deposits (including the right of set-off) held by such banking institutions incurred in the ordinary course of business and which are within the general parameters customary in the banking industry or (ii) contractual rights of setoff to the extent constituting Liens;
(q)    Liens on Equity Interests of any Unrestricted Subsidiary, solely to the extent such Equity Interests do not constitute Collateral;
(r)    Liens in favor of an escrow agent arising under an escrow arrangement incurred in connection with the issuance of notes with respect to the proceeds of such notes and anticipated interest expenses with respect to such notes;
(s)    Permitted Real Estate Encumbrances and Liens on Excluded Assets;
(t)    other Liens securing Indebtedness or other obligations of the Loan Parties in an aggregate amount at any time outstanding not to exceed $40,000,000 so long as the Payment Conditions shall have been satisfied on the date of incurrence thereof;
(u)    subject to the Term Loan Intercreditor Agreement, Liens on Collateral securing the Term Loan Facility;
(v)    (x) Production Payments, royalties, dedication of reserves under supply agreements or similar or related rights or interests granted, taken subject to, or otherwise imposed on properties or (y) cross charges, Liens or security arrangements entered into in respect of a Joint Venture for the benefit of a participant, manager or operator of such Joint Venture, in each case, consistent with normal practices in the mining industry;
(w)    Liens under ERISA or the Code with respect to a Plan that does not constitute an Event of Default under Section 8.01(i);
(x)    Liens on insurance policies and the proceeds thereof securing the financing of insurance premiums with respect thereto;


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(y)    rights of first refusal and rights of first offer in respect of transfers of Equity Interests in Joint Ventures to the extent such rights constitute Liens;
(z)    Liens granted under the Loan and Aircraft Security Agreement (S/N 560- 5802), dated as of July 26, 2016, among Bank of Utah, not in its individual capacity, but solely as owner trustee, as the borrower, Contura Energy Services, LLC, as the operator and Citizens Asset Finance, Inc., as the lender;
(aa)    Residual Mechanic's Liens and Residual Property Tax Liens; and
(bb)    Liens in connection with the escrow of funds in connection with the Refinancing in order to defease the Existing Senior Notes, and Liens securing Indebtedness under Section 7.03(w).

Section 7.02.    Investments.  Make or hold any Investments, except:
(a)    Investments held by the Company or such Restricted Subsidiary in the form of cash or Cash Equivalents;
(b)    advances to officers, directors and employees of the Company and Subsidiaries in an aggregate amount not to exceed $2,500,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes;
(c)    Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;
(d)    Investments (including debt obligations and Equity Interests) received in satisfaction of judgments or in connection with the bankruptcy or reorganization of suppliers and customers of the Company and its Restricted Subsidiaries and in settlement of delinquent obligations of, and other disputes with, such customers and suppliers arising in the ordinary course of business;
(e)    (i) Investments in the nature of Production Payments, royalties, dedication of reserves under supply agreements or similar or related rights or interests granted, taken subject to, or otherwise imposed on properties, (ii) cross charges, Liens or security arrangements entered into in respect of a Joint Venture for the benefit of a participant, manager or operator of such Joint Venture or (iii)     payments or other arrangements whereby the Company or a Restricted Subsidiary provides a loan, advance payment or guarantee in return for future coal deliveries, in each case consistent with normal practices in the mining industry;
(f)    Investments in existence on the Closing Date and (other than individual Investments the amount of which is less than $2,000,000) listed on Schedule 7.02 and extensions, renewals, modifications, restatements or replacements thereof; provided that no such extension, renewal, modification, restatement or replacement shall increase the amount of such Investment except, in the case of a loan, by an amount equal to any Permitted Refinancing Increase;
(g)    (i) promissory notes and other similar non-cash consideration received by the Company and its Subsidiaries in connection with Dispositions not otherwise prohibited under this Agreement and (ii) Investments received in compromise or resolution of (A) obligations of trade creditors or customers that were incurred in the ordinary course of business of the Company and its Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the 


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bankruptcy or insolvency of any trade creditor or customer, (B) litigation, arbitration or other disputes or (C) the foreclosure with respect to any secured investment or other transfer of title with respect to any secured investment;
(h)    Investments in any assets constituting a business unit received by the Company or its Subsidiaries by virtue of a Permitted Asset Swap;
(i)    Hedging Agreements or Cash Management Obligations;
(j)    Investments by the Company or any Restricted Subsidiary in Restricted Subsidiaries, and Investments by any Restricted Subsidiary in the Company; provided that (x) Investments in Restricted Subsidiaries that are not Loan Parties, when aggregated with Indebtedness of a non-Loan Party owing to a Loan Party pursuant to Section 7.03(f) (other than Indebtedness subject to the second proviso of such Section) and Disqualified Equity Interests issued by a non-Loan Party to a Loan Party pursuant to Section 7.03(f), shall not in the aggregate exceed the greater of $40,000,000 and 8% of Consolidated Net Tangible Assets and (y) the Payment Conditions are satisfied at the time the relevant Investment is consummated;
(k)    Investments by the Company or any Restricted Subsidiary in Unrestricted Subsidiaries, non-wholly owned Subsidiaries and Joint Ventures in an aggregate amount not to exceed the greater of $100,000,000 and 20% of Consolidated Net Tangible Assets so long as the Payment Conditions are satisfied at the time the relevant Investment is consummated;
(l)    (1) additional Investments by the Company or any Restricted Subsidiary (i) in an aggregate amount not to exceed the greater of $40,000,000 and 8% of Consolidated Net Tangible Assets plus (ii) an amount equal to the Available Amount (as defined in the Term Loan Credit Agreement as in effect on the Closing Date), so long as the Payment Conditions are satisfied at the time the relevant Investment is consummated;
(m)    Permitted Acquisitions;
(n)    Investments acquired as a capital contribution to the Company, or made in exchange for, or out of the net cash proceeds of, a substantially concurrent offering of Qualified Equity Interests of the Company;
(o)    (i) receivables owing to the Company or any Restricted Subsidiary if created or acquired in the ordinary course of business, (ii) endorsements for collection or deposit in the ordinary course of business and (iii) securities, instruments or other obligations received in compromise or settlement of debts created in the ordinary course of business, or by reason of a composition or readjustment of debts or reorganization of another Person, or in satisfaction of claims or judgments;
(p)    Investments made in the ordinary course of business pursuant to surety bonds, reclamation bonds, performance bonds, bid bonds, appeal bonds and related letters of credit or similar obligations, in each case, to the extent such surety bonds, reclamation bonds, performance bonds, bid bonds, appeal bonds, related letters of credit and similar obligations are permitted under this Agreement;
(q)    Investments in the ordinary course of business consisting of indemnification obligations in respect of performance bonds, bid bonds, appeal bonds, surety bonds, reclamation bonds and completion guarantees and similar obligations under any Mining Law or Environmental Law or with respect to workers’ compensation benefits, in each case entered into in the ordinary course of 


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business, and pledges or deposits made in the ordinary course of business in support of obligations under existing coal sales contracts (and extensions or renewals thereof on similar terms);
(r)    Investments made by the Company in the form of loans pursuant to the Contingent Credit Support Agreement;
(s)    to the extent constituting an Investment, any Guarantee of or the repurchase, repayment, defeasance or retirement of any Indebtedness of the Company or any Subsidiary to the extent such Guarantee, repurchase, prepayment or retirement is expressly permitted hereunder;
(t)    Investments by any Loan Party in the Owner Trust;
(u)    Investments made pursuant to the Reclamation Funding Agreement and all required payments made thereunder; and
(v)    Investments in any Joint Venture in which the Company or a Restricted Subsidiary holds or will hold Equity Interests comprised of any combination of the following: (i) any assets or rights owned or held by one or more of the PRB Subsidiaries or (ii) issuances of Equity Interests by any PRB Subsidiary in order to form or develop such Joint Venture; provided that any such transaction constituting a Disposition shall comply with Section 7.05(i).

Section 7.03.    Indebtedness.  Create, incur, assume or suffer to exist any Indebtedness, except:
(a)    Indebtedness under the Loan Documents (including any such Indebtedness in respect of any Facility Increase in accordance with Section 2.15);
(b)    Indebtedness outstanding on the date hereof and (other than any individual obligation with respect to such Indebtedness that is less than $2,000,000) listed on Schedule 7.03;
(c)    any Permitted Refinancing Indebtedness of Indebtedness permitted under Section 7.03(b) or of Indebtedness subsequently incurred under this Section 7.03(c);
(d)    Guarantees by the Company or any Restricted Subsidiary in respect of Indebtedness otherwise permitted hereunder of the Company or any Restricted Subsidiary;
(e)    Indebtedness in respect of (i) Cash Management Obligations incurred in the ordinary course of business and (ii) Hedging Agreements incurred in the ordinary course of business and not for speculative purposes;
(f)    (i) Indebtedness of the Company and any Restricted Subsidiary owing to any Restricted Subsidiary and of any Restricted Subsidiary owing to the Company and (ii) Disqualified Equity Interests of a Restricted Subsidiary issued to the Company or another Restricted Subsidiary; provided that, (a) any such Indebtedness extended by a non-Loan Party to a Loan Party must be subordinated to the Obligations on customary terms and (b) Indebtedness of a non-Loan Party owing to a Loan Party pursuant to this Section 7.03(f) and any Disqualified Equity Interests of a non-Loan Party issued to a Loan Party, together with Investments in non-Loan Parties made pursuant to Section 7.02(j), shall not in the aggregate exceed the greater of $40,000,000 and 8% of Consolidated Net Tangible Assets; provided further, that notwithstanding the foregoing, any Indebtedness extended by any Loan Party to any non-Loan Party shall be permitted (and shall not be subject to the cap in the immediately preceding proviso) so long as such Indebtedness is evidenced by a promissory note, in 


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form and substance reasonably satisfactory to the Administrative Agent, and such promissory note shall be pledged to the Collateral Agent as Collateral;
(g)    Guarantees by the Company or any Restricted Subsidiary of borrowings by current or former officers, managers, directors, employees or consultants in connection with the purchase of Equity Interests of the Company by any such person in an aggregate principal amount not to exceed $1,000,000 at any one time outstanding;
(h)    subject to the Term Loan Intercreditor Agreement, Indebtedness incurred under the Term Loan Credit Agreement in an aggregate outstanding principal amount that does not exceed the Term Loan Cap (as defined in the Intercreditor Agreement) and (ii) subject to the Intercreditor Agreement, any Refinancing (as defined in the Term Loan Intercreditor Agreement) of the Term Loan Debt (as defined in the Term Loan Intercreditor Agreement) after the Closing Date so long as such Indebtedness, if secured, is secured only by Liens permitted under Section 7.01(u);
(i)    Indebtedness incurred or assumed in connection with Permitted Acquisitions and other permitted Investments consisting of the purchase of a business unit, line of business or a division of a Person or all or substantially all of the assets or all of the Capital Stock of another Person; provided that, after giving effect to the incurrence thereof on a Pro Forma Basis, (i) if such Indebtedness is (or is intended to be) secured by the Collateral on a pari passu basis, the First Lien Leverage Ratio (as calculated in the Term Loan Credit Agreement) is equal to or less than 2.00 to 1.00 and (ii) if such Indebtedness is secured by the Collateral on a junior-lien basis or unsecured, the Total Leverage Ratio (as calculated in the Term Loan Credit Agreement) is equal to or less than 3.00 to 1.00; provided further that Indebtedness incurred by any non-Loan Party pursuant to this Section 7.03(i) shall not in the aggregate exceed the greater of $40,000,000 and 8% of Consolidated Net Tangible Assets; provided, further, that to the extent such Indebtedness is secured by a Lien on any ABL Priority Collateral, such Lien shall be junior to the Lien of the Administrative Agent and the Loan Parties shall segregate (and not commingle) any such ABL Priority Collateral and proceeds thereof, in each case, pursuant to intercreditor arrangements reasonably satisfactory to the Administrative Agent in consultation with the Company.
(j)    Indebtedness incurred or assumed in connection with permitted Investments made pursuant to Section 7.02(m);
(k)    Indebtedness of non-Loan Party Restricted Subsidiaries in an aggregate amount not to exceed $40,000,000 so long as the Payment Conditions shall have been satisfied at the time of the incurrence of such Indebtedness;
(l)    Indebtedness consisting of Capital Leases not to exceed $50,000,000 in the aggregate at any time outstanding;
(m)    additional Indebtedness of the Loan Parties in an amount not to exceed the greater of $75,000,000 and 15% of Consolidated Net Tangible Assets in the aggregate at any time outstanding so long as the Payment Conditions shall have been satisfied at the time of the incurrence of such Indebtedness;
(n)    Indebtedness of the Company or any Restricted Subsidiary in connection with one or more standby or trade-related letters of credit, performance bonds, bid bonds, appeal bonds, bankers acceptances, insurance obligations, reclamation obligations, bank guarantees, surety bonds, completion guarantees or other similar bonds and obligations, including self-bonding arrangements, issued by the Company or a Restricted Subsidiary, in each case, in the ordinary course of business or 


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pursuant to self-insurance obligations and not in connection with the borrowing of money or the obtaining of advances;
(o)    Indebtedness arising from agreements of the Company or any Restricted Subsidiaries providing for indemnification, adjustment of purchase price, earnouts or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or any Subsidiary;
(p)    Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business;
(q)    Indebtedness of the Company or any Restricted Subsidiary consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply or other arrangements;
(r)    any transaction permitted under Section 7.12;
(s)    Indebtedness under the Loan and Aircraft Security Agreement (S/N 560- 5802), dated as of July 26, 2016, among Bank of Utah, not in its individual capacity, but solely as owner trustee, as the borrower, Contura Energy Services, LLC, as the operator and Citizens Asset Finance, Inc., as the lender;
(t)    Indebtedness (the “UMWA Note”) incurred pursuant to (A) the contingent seven-year 5.0% note in an aggregate principal amount of $8,750,000 to be issued to the UMWA on August 1, 2017, if, prior to such date, federal legislation providing retirement health benefits to the UMWA retirees has not been enacted, or if moneys under such legislation have not become available for such benefits, and (B) the contingent seven-year 5.0% note in an aggregate principal amount of $8,750,000 to be issued to the UMWA on December 1, 2017, if, prior to such date, federal legislation providing retirement health benefits to the UMWA retirees has not been enacted, or if moneys under such legislation have not become available for such benefits, in each case pursuant to that certain agreement to fund the VEBA between the Company and UMWA;
(u)    [Reserved];
(v)    Indebtedness under the Reclamation Funding Agreement and all required payments made thereunder; and
(w)    Indebtedness deemed to be outstanding under the Existing Senior Notes, which Indebtedness shall only be deemed permitted if the deposit of cash with the Existing Notes Trustee in accordance with the Existing Senior Notes Indenture, in connection with an irrevocable notice of repurchase or redemption in full issued on or before the Closing Date for repurchase or redemption to occur within 30 days as set forth in the Existing Senior Notes Indenture, has occurred on or prior the Closing Date and the Existing Senior Notes have, in fact, been repaid in full within 30 days after the Closing Date.

Section 7.04.    Fundamental Changes.  Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of the assets (whether now owned or hereafter acquired) of the Company and its Restricted Subsidiaries, taken as a whole, to or in favor of any Person, except that, if no Default exists or would immediately result therefrom:


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(a)    any Subsidiary may merge or consolidate with (i) any Borrower, provided that a Borrower shall be the continuing or surviving Person or (ii) any one or more other Subsidiaries, provided that (A) when any wholly-owned Subsidiary is merging with another Subsidiary, the wholly-owned Subsidiary shall be the continuing or surviving Person, (B) when any Restricted Subsidiary is merging with any other Subsidiary, the continuing or surviving Person (unless such surviving Person could otherwise be designated an Unrestricted Subsidiary hereunder) shall be a Restricted Subsidiary, (C) when any Foreign Subsidiary is merging with any Domestic Subsidiary, the continuing or surviving Person shall be the Domestic Subsidiary, (D) when any Guarantor or Borrower is merging with any other Subsidiary, the continuing or surviving Person shall be a Guarantor or a Borrower, respectively, and (E) when any Guarantor or Borrower is merging with the Company, the continuing or surviving Person shall be the Company;
(b)    any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any Borrower or to another Subsidiary; provided that (i) if the transferor in such a transaction is a Restricted Subsidiary, then the transferee must either be a Borrower or another Restricted Subsidiary (unless such Disposition would otherwise be permitted as an Investment in an Unrestricted Subsidiary), (ii) if the transferor is a Domestic Subsidiary, then the transferee must either be a Borrower or another Domestic Subsidiary and (iii) if the transferor is a Guarantor, then the transferee must either be a Borrower or another Guarantor;
(c)    the Company and any Restricted Subsidiary may merge or consolidate with any other Person in a transaction (including any Permitted Acquisition) in which the Company or the Restricted Subsidiary, as applicable, is the surviving or continuing Person; provided that, (i) a Borrower may not merge or consolidate with a Restricted Subsidiary unless the applicable Borrower is the surviving or continuing Person, (ii) the Company may not merge or consolidate with any other Person unless the continuing or surviving Person shall be the Company and (iii) such merger or consolidation is permitted under Section 7.02(m) hereof; and
(d)    any Restricted Subsidiary may liquidate or dissolve if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and not materially disadvantageous to the Lenders and the assets, if any, of any Restricted Subsidiary so liquidated or dissolved are transferred (x) to another Restricted Subsidiary or any Borrower and (y) to a Guarantor or any Borrower if such liquidated or dissolved Restricted Subsidiary is a Guarantor.

Section 7.05.    Dispositions.  Make any Disposition (other than Dispositions permitted pursuant to Sections 7.01, 7.04 and 7.06), except:
(a)    Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Company, is no longer useful in its business (but excluding any real property);
(b)    Dispositions of inventory, equipment or accounts receivable in the ordinary course of business;
(c)    Dispositions of cash and Cash Equivalents pursuant to transactions permitted under this Agreement (including pursuant to Section 7.02) or otherwise in the ordinary course of business;
(d)    (A) Dispositions of defaulted receivables in the ordinary course of business and (B) Dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceeding;


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(e)    licensing, sublicensing and cross-licensing arrangements involving any technology or other intellectual property of the Company or any Restricted Subsidiary in the ordinary course of business or lapse or abandonment of intellectual property rights in the ordinary course of business that, in the reasonable judgment of the Company, is no longer useful in its business;
(f)    Permitted Asset Swaps;
(g)    (A) the grant in the ordinary course of business of any non-exclusive easements, permits, licenses, rights of way, surface leases or other surface rights or interests and (B) any lease, sublease or license of assets (with a Loan Party as the lessor, sublessor or licensor) in the ordinary course of business;
(h)    (i) transfers of condemned property as a result of the exercise of “eminent domain” or other similar policies or (ii) transfers of properties to the extent that such property has been subject to a casualty event for which the Loan Parties or a creditor with a Lien on such property that is permitted hereunder have received (or have not been denied) insurance proceeds or condemnation awards;
(i)    other Dispositions (other than Dispositions of ABL Priority Collateral, except to the extent such Disposition accompanies the Disposition of a mining operation or all or substantially all of the assets of Subsidiary), if immediately after giving effect to such Disposition, (i) no Event of Default has occurred and is continuing, (ii) the consideration received for such Disposition shall be in an amount at least equal to the fair market value thereof as reasonably determined by the Company in good faith and (iii) at least 75% of the consideration for such Dispositions undertaken pursuant to this Section 7.05(i) shall be paid in cash or Cash Equivalents, provided that, solely for purposes of this provision, each of the following shall be deemed to be cash:
(i)    any securities, notes, other obligations or assets received by the Company or any Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof, to the extent of the cash or Cash Equivalents received in that conversion;
(ii)    any reclamation, employment related or any other liabilities of the Company or any Restricted Subsidiary (other than contingent liabilities) that are assumed by the transferee of any such assets and as a result of which the Company or such Restricted Subsidiary is released from further liability; and
(iii)    any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition; provided that (1) the aggregate fair market value of such Designated Non-Cash Consideration, as reasonably determined by the Company in good faith, taken together with the fair market value at the time of receipt of all other Designated Non-Cash Consideration received pursuant to this clause (C) minus (2) the amount of “Net Proceeds” (as defined in the Term Loan Credit Agreement) previously realized in cash from prior Designated Non-Cash Consideration shall not exceed $10,000,000;
(j)    any Investment permitted pursuant to Sections 7.02(j), 7.02(k) or 7.02(l), which constitutes a Disposition;
(k)    Dispositions of Excluded Assets and other Dispositions that do not constitute Asset Sales;


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(l)    to the extent allowable under Section 1031 of the Code, or any comparable or successor provision, any like kind exchange of property for use in a Similar Business;
(m)    (i) any surrender or waiver of contractual rights or the settlement, release, or surrender of contractual rights or other litigation claims in the ordinary course of business or (ii) any settlement, discount, write off, forgiveness, or cancellation of any Indebtedness owing by any present or former directors, officers, or employees of the Company or` any Restricted Subsidiary or any of their successors or assigns;
(n)    the unwinding or termination of any Hedging Obligations; and
(o)    the sale of assets by the Company and its Restricted Subsidiaries consisting of real property solely to the extent that such real property is not necessary for the normal conduct of operations of the Company and its Restricted Subsidiaries.
To the extent the Required Lenders waive the provisions of this Section 7.05 with respect to the Disposition of any property or any property is Disposed of as permitted by this Section 7.05, such property (unless sold, transferred or otherwise disposed of to a Loan Party) shall be Disposed of free and clear of the Liens created by the Collateral Documents, and the Administrative Agent and/or the Collateral Agent shall take all actions reasonably requested by the Company to effect the foregoing.

Section 7.06.    Restricted Payments.  Declare or make, directly or indirectly, any Restricted Payment; except that:
(a)    each Subsidiary may make Restricted Payments to the Company, its Subsidiaries and any other Person that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made or as otherwise required pursuant to its Organizational Documents;
(b)    the Company and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other Equity Interests of such Person or another Subsidiary;
(c)    the Company may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issuance of new shares of common stock or other Qualified Equity Interests of the Company;
(d)    the Company or any of its Subsidiaries may purchase (i) Equity Interests issued by any Loan Party or options with respect thereto held by directors, officers or employees of the Company or any Restricted Subsidiary (or their estates or authorized representatives) in connection with (A) the death, disability or termination of employment of any such director, officer or employee or (B) any benefit, incentive or equity compensation plans to provide funds for the payment of any Tax or other amounts owing by such directors, officers or employees upon vesting or exercise or settlement of the Equity Interests or options provided under such plans; and (ii) Equity Interests issued by any Loan Party for future issuance under any benefit, incentive or equity compensation plan; provided that
(e)    no Event of Default has occurred and is continuing at the time of such purchase and (b) for both clauses (i) and (ii), the aggregate cash consideration paid therefor in any twelve-month period after the Closing Date shall not exceed $15,000,000 in the aggregate;


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(f)    so long as no Event of Default shall have occurred and be continuing or would result therefrom and the Payment Conditions have been satisfied at the time such Restricted Payment is made, the Company and its Subsidiaries may make Restricted Payments in an amount not to exceed (i) $20,000,000 plus (ii) the Available Amount (as defined in the Term Loan Credit Agreement);
(g)    the Borrowers may make regularly scheduled payments of principal or interest on any unsecured Indebtedness for borrowed money, the Term Loan Facility and any Junior Lien Indebtedness;
(h)    the prepayment, repayment, redemption, repurchase, defeasance or other acquisition or retirement for value of unsecured Indebtedness for borrowed money, the Term Loan Facility, any Subordinated Indebtedness or any Junior Lien Indebtedness (A) with the net cash proceeds of, or in exchange for, Permitted Refinancing Indebtedness or (B) in exchange for, or out of the proceeds of, a substantially concurrent issue of new shares of common stock or other Qualified Equity Interests of the Company;
(i)    the prepayment, repayment, redemption, repurchase, defeasance or other acquisition or retirement for value of, to the extent constituting Indebtedness for borrowed money, (i) unsecured Indebtedness incurred pursuant to Sections 7.03(t), (u) and (v), (ii) VEBA contributions for non-union retirees in an amount not to exceed $7,000,000 in the aggregate for all such Restricted Payments made pursuant to this Section 7.06(h)(ii) and (iii) other unsecured Indebtedness for borrowed money in an amount not to exceed $5,000,000 in the aggregate for all such Restricted Payments made pursuant to this Section 7.06(h)(iii);
(j)    so long as the Payment Conditions shall have been satisfied at the time of payment thereof, the Borrowers may make payments in respect of any unsecured Indebtedness, Subordinated Indebtedness, Junior Lien Indebtedness or Indebtedness in respect of the Term Loan Facility, in each case, in accordance with the terms thereof and only to the extent permitted by and subject to the subordination provisions contained therein;
(k)    cash payments in lieu of fractional shares upon exercise of options or warrants or conversion or exchange of convertible securities, repurchases of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such securities represent a portion of the exercise price of such options, warrants or other convertible securities and repurchases of Equity Interests in connection with the withholding of a portion of the Equity Interests granted or awarded to a director or an employee to pay for the Taxes payable by such director or employee upon such grant or award;
(l)    the Company may make Restricted Payments owed upon the exercise of warrants issued by the Company;
(m)    payments made pursuant to the Reclamation Funding Agreement; and
(n)    notwithstanding the foregoing, if the Company declares a dividend or distribution pursuant to any of the foregoing clauses (a) through (l), the Company can pay any such dividend or distribution within 30 days after the date of declaration thereof.

Section 7.07.    Accounting Changes; Change in Nature of Business; Foreign Operations.  Change the Company’s or Restricted Subsidiaries’ accounting and financial reporting practices as in effect as of the Closing Date in any material respect, except for any changes made in accordance with GAAP, without the prior written consent of the Administrative Agent or engage in any material line of business other than 


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a Similar Business or hold a material portion of its Property that would otherwise be required pursuant to the Loan Documents to become subject to a fully perfected Lien in favor of the Collateral Agent in a foreign jurisdiction.

Section 7.08.    Transactions With Affiliates.  Enter into, renew or extend any transaction or arrangement, including, without limitation, any purchase, sale, lease or exchange of property or assets or the rendering of any service, with any Affiliate of the Company or any Restricted Subsidiary (a “Related Party Transaction”) involving an aggregate consideration in excess of $10,000,000, unless the Related Party Transaction is (a) not otherwise prohibited by this Agreement, and (b) on fair and reasonable terms that are not materially less favorable (as reasonably determined by the Company) to the Company or any of the relevant Restricted Subsidiaries than those that could be obtained in a comparable arm’s-length transaction with a Person that is not an Affiliate of the Company; provided that (i) any Related Party Transaction or series of Related Party Transactions with an aggregate value in excess of $20,000,000 must first be approved by a majority of the board of directors of the Company who are disinterested in the subject matter of the transaction pursuant to a resolution by the board of directors of the Company and (ii) with respect to any Related Party Transaction or series of Related Party Transactions with an aggregate value in excess of $35,000,000, the Company must deliver to the Administrative Agent an opinion from an accounting, appraisal, or investment banking firm of national standing in the applicable jurisdiction (x) stating that its terms are not materially less favorable to the Company or any of the relevant Restricted Subsidiaries that would have been obtained in a comparable transaction with an unrelated Person or (ii) as to the fairness to the Company or any of the relevant Restricted Subsidiaries of such Related Party Transaction from a financial point of view the Company.  Notwithstanding the foregoing, the restrictions contained in this Section 7.08 shall not apply to the following transactions or arrangements:
(a)    transactions between or among the Company and any of the Loan Parties or between and among any Loan Parties;
(b)    the payment of reasonable and customary fees and reimbursement of expenses payable to directors of the Company or any of its Restricted Subsidiaries or to any Plan, Plan administrator or Plan trustee;
(c)    loans and advances to directors, officers and employees to the extent permitted by Section 7.02;
(d)    the arrangements with respect to the procurement of services of directors, officers, independent contractors, consultants or employees in the ordinary course of business and the payment of customary compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and reasonable reimbursement arrangements in connection therewith;
(e)    payments to directors and officers of the Company and its Restricted Subsidiaries in respect of the indemnification of such Persons in such respective capacities from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements, as the case may be, pursuant to the Organizational Documents or other corporate action of the Company or its Restricted Subsidiaries, respectively, or pursuant to applicable law;
(f)    intercompany Investments permitted pursuant to Section 7.02(j) and intercompany Indebtedness and issuances of Disqualified Equity Interests, in each case, permitted pursuant to Section 7.03(f);
(g)    Restricted Payments permitted by Section 7.06;


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(h)    transactions arising under any contract, agreement, instrument or other arrangement in effect on the Closing Date and set forth on Schedule 7.08, as amended, modified or replaced form time to time so long as the amended, modified or new arrangements, taken as a whole at the time such arrangements are entered into, are not materially less favorable to the Company and its Restricted Subsidiaries than those in effect on the Closing Date; and
(i)    any transactions with DTA; provided, that such transactions are on fair and reasonable terms that are not materially less favorable (as reasonably determined by the Company) to the Company or any of the relevant Restricted Subsidiaries than those that could be obtained in a comparable arm’s-length transaction with a Person that is not an Affiliate of the Company.

Section 7.09.    Use of Proceeds.  Use the proceeds of any Borrowing, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.

Section 7.10.    Burdensome Agreements.  Enter into any Contractual Obligation that (x) limits the ability of the Company or any Guarantor to create, incur, assume or suffer to exist any Lien upon any of its property to secure the Obligations hereunder or (y) limits the ability of any Subsidiary to make Restricted Payments to the Company or any Guarantor or to otherwise transfer property to the Company or any Guarantor; provided, however, that the foregoing clause shall not apply to Contractual Obligations which:
(a)    solely in the case of clause (y) of this Section 7.10, exist on the date hereof and (to the extent not otherwise permitted by this Section 7.10) are listed on Schedule 7.10;
(b)    are binding on a Restricted Subsidiary at the time such Restricted Subsidiary first becomes a Restricted Subsidiary of the Company, so long as such Contractual Obligations were not entered into solely in contemplation of such Person becoming a Restricted Subsidiary of the Company;
(c)    arise in connection with covenants in documents creating Liens permitted by Section 7.01 prohibiting further Liens on the properties encumbered thereby;
(d)    arise in connection with the Term Loan Credit Agreement and Subordinated Indebtedness permitted by Section 7.03;
(e)    arise in connection with any Disposition permitted by Section 7.05 solely with respect to the assets that are the subject of such Disposition;
(f)    are customary provisions in Joint Venture agreements and other similar agreements applicable solely to such Joint Venture or the Equity Interests therein;
(g)    are customary restrictions on leases, subleases, licenses or asset sale agreements otherwise permitted hereby so long as such restrictions relate to the assets subject thereto;
(h)    are customary provisions restricting subletting or assignment of any lease governing a leasehold interest of the Company or any Restricted Subsidiary;
(i)    are customary limitations (including financial maintenance covenants) existing under or by reason of leases entered into in the ordinary course of business;


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(j)    are restrictions on cash or other deposits imposed under contracts entered into in the ordinary course of business;
(k)    are customary provisions restricting assignment of any agreements;
(l)    arise in connection with any Contractual Obligations that relate to the Excluded Assets;
(m)    arise in connection with applicable law, rule, regulation, order, approval, license, permit or similar restriction (whether or not existing on the Closing Date) or are mandated by any Governmental Authority;
(n)    customary provisions in Hedging Obligations; or
(o)    are set forth in any agreement evidencing an amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing of the Contractual Obligations referred to in clauses (a) through (n) above; provided that such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing is, in the good faith judgment of the Company, not materially less favorable to the Loan Party with respect to such limitations than those applicable pursuant to such Contractual Obligations prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.

Section 7.11.    Fiscal Year.  Change its fiscal year-end from December 31.

Section 7.12.    Sale and Lease-Backs.  Become or remain liable as lessee or as a guarantor or other surety with respect to any lease of any property (whether real, personal or mixed), whether now owned or hereafter acquired, which the Company or such Restricted Subsidiary (a) has sold or transferred or is to sell or to transfer to any other Person (other than the Company or any of its Restricted Subsidiaries), to the extent involving the sale of assets with a fair market value in excess of $70,000,000 in the aggregate and (b) intends to use for substantially the same purpose as any other property which has been or is to be sold or transferred by the Company or such Restricted Subsidiary to any Person (other than the Company or any of its Restricted Subsidiaries) in connection with such lease.

Section 7.13.    Amendments or Waivers to Certain Agreements.  Agree to any amendment, restatement, supplement or other modification to, or waiver of, (a) any of its Organizational Documents or
(a)    any document governing Subordinated Indebtedness or Junior Lien Indebtedness, after the Closing Date, in each case, to the extent the same would reasonably be expected to be materially adverse to any Secured Party (in the good faith determination of the Company), without obtaining the prior written consent of Required Lenders to such amendment, restatement, supplement or other modification or waiver.

Section 7.14.    No Further Negative Pledge.  Enter into any agreement, instrument, deed or lease which prohibits or limits the ability of any Loan Party to create, incur, assume or suffer to exist any Lien upon any of its properties or revenues, whether now owned or hereafter acquired, or which requires the grant of any security for an obligation if security is granted for another obligation, except the following: (a) this Agreement, the Term Loan Credit Documents and the other Loan Documents; (b) covenants in documents creating Liens permitted by Section 7.01 prohibiting further Liens on the properties encumbered thereby; and (c) any prohibition or limitation that (i) exists pursuant to applicable Laws, (ii) consists of customary restrictions and conditions contained in any agreement relating to the sale of any property 


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pending the consummation of such sale; provided that (1) such restrictions apply only to the property to be sold and such sale is permitted hereunder, and (2) such sale is permitted hereunder, (iii) restricts subletting or assignment of any lease governing a leasehold interest of Borrower or one of its Subsidiaries, or (iv) is a restriction on Liens otherwise permitted by the terms of Section 7.10 of this Agreement.

Section 7.15.    Anti-Corruption; Sanctions; Terrorism Laws.
(a)    Directly or indirectly, (i) conduct any business or engage in making or receiving any contribution of funds, goods or services to or for the benefit of any Person subject to any Sanctions, (ii) deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to the PATRIOT Act, the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, any Sanctions Laws or any Anti-Corruption Laws or (iii) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in the PATRIOT Act, the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, any Sanctions Laws or any Anti-Corruption Laws
(b)    Cause or permit any of the funds of such Loan Party that are used to repay the Loans to be derived from any unlawful activity with the result that the making of the Loans would be in violation of Laws.

Section 7.16.    [Reserved].

Section 7.17.    Minimum Fixed Charge Coverage Ratio.  During any Liquidity Period, permit the Fixed Charge Coverage Ratio to be less than 1.00 to 1.00 as of the last day of any Test Period, commencing with the Test Period ended immediately preceding the commencement of such Liquidity Period (it being understood that the requirement to comply with such minimum Fixed Charge Coverage Ratio under this Section 7.177 shall again be triggered upon the commencement of any other Liquidity Period on any succeeding day).

ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES

Section 8.01.    Events of Default.  Any of the following shall constitute an “Event of Default”:
(a)    Non-Payment.  Any Borrower or any other Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan, or (ii) within five Business Days after the same becomes due, any interest on any Loan, or any fee due hereunder, any other amount payable hereunder or under any other Loan Document; or
(b)    Specific Covenants.  Any Borrower fails to perform or observe any term, covenant or agreement contained in any of Sections 6.01(a), 6.01(b), 6.02(a), 6.03(a), 6.05, 6.11, 6.20 or Article VII;
(c)    Other Defaults.  (i) Any Loan Party fails to deliver any Borrowing Base Certificate as required by Section 6.02(f) and such failure continues for three (3) Business Days, any Loan Party fails to comply with Section 6.10 hereof after the Administrative Agent or its representatives have 


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complied in all material respects with any obligations set forth in Section 6.10 and such failure continues for five (5) Business Days after written notice from the Administrative Agent to the Company and (iii) any Loan Party fails to perform or observe any other covenant or agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for 30 days after the earlier of (A) written notice from the Administrative Agent to the Company or (B) knowledge of a Responsible Officer of the Company; or
(d)    Representations and Warranties.  Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of any Borrower or any other Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made; or
(e)    Cross-Default.  Any Borrower or any Restricted Subsidiary (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder) in each case having an aggregate principal amount of more than the Threshold Amount, beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness or Guarantee was created, (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity, or such Guarantee to become due or payable, or (C) fails to observe or perform any agreement or condition relating to any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, as a result of which default or other event, the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) shall have caused, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity, or such Guarantee to become due or payable; or
(f)    Insolvency Proceedings, Etc.  Subject to Section 8.03, any Loan Party or any of its Restricted Subsidiaries institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any substantial part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any substantial part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or
(g)    Inability to Pay Debts; Attachment.  Subject to Section 8.03, (i) any Borrower or any Restricted Subsidiary becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any substantial part of the property of any such Person and is not released, vacated or fully bonded within 60 days after its issue or levy; or
(h)    Judgments.  There is entered against any Borrower or any Restricted Subsidiary a final judgment or order for the payment of money in an aggregate amount exceeding the Threshold 


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Amount (to the extent not covered by independent third party insurance), and such judgments or orders shall not have been vacated, discharged, stayed or bonded pending appeal within 60 days from the entry thereof; or
(i)    ERISA.  The occurrence of any of the following events that would reasonably be expected to result in a Material Adverse Effect: (i) an ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or would reasonably be expected to result in an actual obligation to pay money of any Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC, or (ii) any Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan; or
(j)    Invalidity of Material Loan Documents.  Any material Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or payment in full, ceases to be in full force and effect; or any Loan Party contests the validity or enforceability of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan Document; or any Collateral Document ceases to create a valid Lien on a material portion of the Collateral (other than as expressly permitted thereunder or solely as a result of the acts or omissions of the Administrative Agent or Collateral Agent (including failure to maintain possession of any stock certificates, or other instruments delivered to it under any Collateral Document)); or
(k)    Change of Control.  There occurs any Change of Control; or
(l)    Subordinated and Junior Lien Indebtedness.  Any Subordinated Indebtedness or any Junior Lien Indebtedness permitted hereunder or the guarantees thereof or, in the case of Junior Lien Indebtedness, the Liens securing such Junior Lien Indebtedness, shall cease, for any reason, to be validly subordinated to the Obligations of the Loan Parties hereunder, as provided in any Intercreditor Agreement or the indenture governing such Subordinated Indebtedness or Junior Lien Indebtedness, or any Loan Party, any Affiliate of any Loan Party, the trustee in respect of Subordinated Indebtedness or Junior Lien Indebtedness or the holders of at least 25% in aggregate principal amount of the Subordinated Indebtedness or Junior Lien Indebtedness shall so assert.

Section 8.02.    Remedies Upon Event of Default.  (a) If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions:
(i)    declare the commitment of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;
(ii)    declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers;
(iii)    require that the Borrowers Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount thereof);


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(iv)    exercise on behalf of itself, the Lenders and the applicable L/C Issuer all rights and remedies available to it, such Lenders and such L/C Issuer under the Loan Documents or applicable law (including in respect of the Collateral);
provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrowers under the Debtor Relief Laws, the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Borrowers to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.
(b)    Upon the occurrence of the Termination Date, (i) the Commitments of each Lender to make Loans and the Commitments of each Lender and L/C Issuer to issue or participate in Letters of Credit shall each automatically be terminated, (ii) the Loans, all interest thereon and all other amounts and Obligations shall automatically become due and payable in cash, without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived by the Borrowers and the other Loan Parties.

Section 8.03.    Exclusion of Immaterial Subsidiaries.  Solely for the purposes of determining whether an Event of Default has occurred under clause (f) or (g) of Section 8.01, any reference in any such clause to any Restricted Subsidiary shall be deemed not to include any Restricted Subsidiary affected by any event or circumstance referred to in any such clause that did not, as of the last day of the fiscal quarter of the Company most recently ended, have assets with a value in excess of 5% of the Tangible Assets or 5% of consolidated total revenues, in each case, of the Company and the Restricted Subsidiaries as of such date; provided that if it is necessary to exclude more than one Restricted Subsidiary from clause (f) or (g) of Section 8.01 pursuant to this Section 8.03 in order to avoid an Event of Default thereunder, all excluded Restricted Subsidiaries shall be considered to be a single consolidated Restricted Subsidiary for purposes of determining whether the condition specified above is satisfied.

Section 8.04.    Application of Funds.  On the Termination Date and after the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized), subject to the Intercreditor Agreement, any amounts received on account of the Obligations shall, subject to the provisions of Section 2.16, be applied by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article III) payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuer with respect to Letters of Credit (including fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuer (including fees and time charges for attorneys who may be employees of any Lender or the L/C Issuer)) and amounts payable under Article III, ratably among them in proportion to the respective amounts described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably among 


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the Lenders and the L/C Issuer in proportion to the respective amounts described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans, L/C Borrowings and amounts owing under Secured Hedge Agreements and Secured Cash Management Agreements, ratably among the Lenders, the L/C Issuers (including to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit), the Hedge Banks and the Cash Management Banks, as applicable, in proportion to the respective amounts described in this clause Fourth held by them; and
Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrowers or as otherwise required by Law;
Subject to Section 2.04(d), amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur.  If any amount remains on deposit as cash collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.

ARTICLE IX
ADMINISTRATIVE AGENT

Section 9.01.    Appointment.  (a) Each of the Lenders and the L/C Issuers hereby irrevocably appoints, designates and authorizes the Administrative Agent to take such actions on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are delegated to the Administrative Agent by the terms and provisions hereof and of the other Loan Documents, together with such power as are reasonably incidental thereto.  Notwithstanding any provision to the contrary contained elsewhere herein or in any other Loan Document, the Administrative Agent shall have no duties or responsibilities, except those expressly set forth herein, nor shall the Administrative Agent have or be deemed to have any fiduciary relationship with any Lender, L/C Issuer or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent.  Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law.  Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.  The provisions of this Article IX (other than Sections 9.10 and 9.12) are solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuer, and neither the Borrowers nor any other Loan Party shall have rights as a third party beneficiary of any such provisions.
(b)    Each L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and each such L/C Issuer shall have all of the benefits and immunities (i) provided to the Administrative Agent in this Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and the applications and agreements for letters of credit pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in this Article IX and in the definition of “Agent Affiliate” included such L/C Issuer with respect to such acts or omissions, and (ii) as additionally provided herein with respect to such L/C Issuer.


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(c)    The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (in its capacities as a Lender or Swingline Lender (if applicable)) and L/C Issuer hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of (and to hold any security interest created by the Collateral Documents for and on behalf of or on trust for) such Lender, L/C Issuer and its Affiliates for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto.  In this connection, the Administrative Agent, as “collateral agent” (and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.02 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent), shall be entitled to the benefits of all provisions of this Article IX (including Section 9.07, as though such co- agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto.  Without limiting the generality of the foregoing, the Lenders and L/C Issuers hereby expressly authorize the Administrative Agent to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Collateral Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders and L/C Issuers.

Section 9.02.    Delegation of Duties.  The Administrative Agent may execute any of its duties under this Agreement or any other Loan Document (including for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents or of exercising any rights and remedies thereunder) by or through agents, sub-agents, employees or attorneys-in-fact (including for the purpose of any Borrowing or payment in alternative currencies) as shall be deemed necessary by the Administrative Agent and shall be entitled to advice of counsel and other consultants or experts concerning all matters pertaining to such duties.  Each such sub-agent and the Affiliates of the Administrative Agent and each such sub-agent shall be entitled to the benefits of all provisions of this Article IX, Error! Reference source not found.  and Section 11.04(b) (as though such sub-agents were the “Administrative Agent” under the Loan Documents) as if set forth in full herein with respect thereto.  The Administrative Agent shall not be responsible for the negligence or misconduct of any agent or sub- agent or attorney-in-fact that it selects in the absence of gross negligence or willful misconduct (as determined in the final judgment of a court of competent jurisdiction).

Section 9.03.    Liability of Agents.  No Agent Affiliate shall (a) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein), or (b) be responsible in any manner to any Lender, L/C Issuer or participant for any recital, statement, representation or warranty made by any Loan Party or any officer thereof, contained herein or in any other Loan Document, or in any certificate, report, statement or other document referred to or provided for in, or received by any Agent under or in connection with, this Agreement or any other Loan Document, or the execution, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, or the perfection or priority of any Lien or security interest created or purported to be created under the Collateral Documents, or for any failure of any Loan Party or any other party to any Loan Document to perform its obligations hereunder or thereunder.  No Agent Affiliate shall be under any obligation to any Lender, any L/C Issuer or participant to ascertain or to inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the 


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covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or the perfection or priority of any Lien or security interest created or purported to be created by the Collateral Documents, (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent, or (vi) or to inspect the properties, books or records of any Loan Party or any Affiliate thereof.  No Agent Affiliate shall have any duties or obligations to any Lender, any L/C Issuer or participant except those expressly set forth herein and in the other Loan Documents, and without limiting the generality of the foregoing, the Agent Affiliates:
(a)    shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(b)    shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that such Person is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that such Person shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose it to liability or that is contrary to any Loan Document or applicable law; and
(c)    shall not be required to carry out any “know your customer” or other checks in relation to any person on behalf of any Lender or any L/C Issuer and each Lender and each L/C Issuer confirms to the Administrative Agent that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Administrative Agent or any of its Affiliates.
No Agent Affiliate be liable (i) to any participant or Secured Party or their Affiliates for any failure, delay in performance, breach by, or as a result of information provided by, any other party to any Loan Document or action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or such Person shall believe in good faith shall be necessary under the circumstances) or (ii) in the absence of its own gross negligence or willful misconduct, as determined by a final judgment of a court of competent jurisdiction.

Section 9.04.    Reliance by the Administrative Agent.  (a) The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, instrument, document, communication, signature, resolution, representation, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, electronic mail message, statement or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and/or upon advice and statements of legal counsel (including counsel to any Loan Party), independent accountants and other experts selected by the Administrative Agent.  The Administrative Agent shall be fully justified in failing or refusing to take any action under any Loan Document unless it shall first receive such advice or concurrence of the Required Lenders as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Lenders and L/C Issuers against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.  The Administrative Agent shall in all cases 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 such greater number of Lenders as may be expressly required hereby in any instance) and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and L/C Issuers; provided that the Administrative Agent shall not be required 


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to take any action that, in its opinion or in the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law.

Section 9.05.    Notice of Default.  The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default, except with respect to defaults in the payment of principal, interest and fees required to be paid to the Administrative Agent for the account of the Lenders or the L/C Issuers, unless the Administrative Agent shall have received written notice from a Lender or a Borrower referring to this Agreement, describing such Default and stating that such notice is a “notice of default.”  The Administrative Agent will notify the Lenders and the L/C Issuers of its receipt of any such notice.  The Administrative Agent shall take such action with respect to any Event of Default as may be directed by the Required Lenders in accordance with Article VIII; provided that unless and until the Administrative Agent has received any such direction, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Event of Default as it shall deem advisable or in the best interest of the Lenders and the L/C Issuers.

Section 9.06.    Credit Decision; Disclosure of Information by Agents.  Each Lender and each L/C Issuer acknowledges that no Agent Affiliate has made any representation or warranty to it, and that no act by the Administrative Agent hereafter taken, including any consent to and acceptance of any assignment or review of the affairs of any Loan Party or any Affiliate thereof, shall be deemed to constitute any representation or warranty by any Agent Affiliate to any Lender or L/C Issuer as to any matter, including whether Agent Affiliates have disclosed material information in their possession.  Each Lender and each L/C Issuer represents to each Agent that it has, independently and without reliance upon any Agent Affiliate 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 Loan Parties and their respective Subsidiaries, and all applicable bank or other 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 and the other Loan Parties hereunder.  Each Lender and each L/C Issuer also represents that it will, independently and without reliance upon any Agent Affiliate 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 the other Loan Parties.  Except for notices, reports and other documents expressly required to be furnished to the Lenders or the L/C Issuers by any Agent herein, such Agent shall not have any duty or responsibility to provide any Lender or any L/C Issuer with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties or any of their respective Affiliates which may come into the possession of any Agent Affiliate.

Section 9.07.    Indemnification of the Administrative Agent.  Whether or not the transactions contemplated hereby are consummated, the Lenders and L/C Issuers shall indemnify upon demand the Administrative Agent and each other Agent Affiliate (to the extent not reimbursed by or on behalf of any Loan Party and without limiting the obligation of any Loan Party to do so), pro rata, and hold harmless the Administrative Agent and each other Agent Affiliate from and against any and all Indemnified Liabilities incurred by it; provided that no Lender or L/C Issuer shall be liable for the payment to any Agent Affiliate of any portion of such Indemnified Liabilities resulting from such Agent Affiliate’s own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction; provided that no action taken in accordance with the directions of the Required Lenders (or such other number or percentage of the Lenders as shall be required by the Loan Documents) shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section 9.07.  In the case of any investigation, 


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litigation or proceeding giving rise to any Indemnified Liabilities, this Section 9.07 applies whether any such investigation, litigation or proceeding is brought by any Lender, any L/C Issuer or any other Person.  Without limitation of the foregoing, each Lender and each L/C Issuer shall reimburse the Administrative Agent upon demand for its ratable share of any costs or out-of-pocket expenses (including all reasonable fees, expenses and disbursements of any law firm or other external legal counsel and compensation of agents and employees paid for services rendered on behalf of the Lenders or the L/C Issuer) incurred by the Administrative 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, to the extent that the Administrative Agent is not reimbursed for such expenses by or on behalf of the Borrowers, provided that such reimbursement by the Lenders or by the L/C Issuers shall not affect the Borrowers’ continuing reimbursement obligations with respect thereto.  The undertaking in this Section 9.07 shall survive termination of the Commitments of all Lenders and all L/C Issuers, the payment of all other Obligations and the resignation of the Administrative Agent.

Section 9.08.    Withholding Tax.  If any Governmental Authority of the United States or other jurisdiction asserts a claim that the Administrative Agent did not properly withhold Taxes from amounts paid to or for the account of any Lender or any L/C Issuer for any reason (including, without limitation, because the appropriate form was not delivered or not property executed, or because such Lender or such L/C Issuer failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding Tax ineffective), such Lender or such L/C Issuer shall indemnify and hold harmless the Administrative Agent (to the extent that the Administrative Agent has not already been reimbursed by any Loan Party and without limiting or expanding the obligation of the applicable Loan Party to do so) for all amounts paid, directly or indirectly, by the Administrative Agent as Taxes or otherwise, including any interest, additions to tax or penalties thereto, together with all reasonable expenses incurred, including legal expenses and any other out-of-pocket expenses, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Government Authority.  A certificate as to the amount of such payment or liability delivered to any Lender or any L/C Issuer by the Administrative Agent shall be conclusive absent manifest error.

Section 9.09.    Administrative Agent in Its Individual Capacity.      (a) Any Person serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include each Person serving as Administrative Agent hereunder in its individual capacity.  Each Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire Equity Interests in and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with each of the Loan Parties and their respective Affiliates as though such Agent were not an Agent or an L/C Issuer hereunder and without notice to or consent of the Lenders.  The Lenders and L/C Issuer acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that the Administrative Agent shall not be under any obligation to provide such information to them.  With respect to its Loans, the Administrative Agent shall have the same rights and powers under this Agreement as any other Lender and may exercise such rights and powers as though it were not an Agent the Administrative Agent an L/C Issuer, and the terms “Lender” and “Lenders” include each Agent in its individual capacity.


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(b)    Each Lender and each L/C Issuer understands that the Person serving as Administrative Agent, acting in its individual capacity, and its Affiliates (collectively, the “Agent’s Group”) are engaged in a wide range of financial services and businesses (including investment management, financing, securities trading, corporate and investment banking and research) (such services and businesses are collectively referred to in this Section 9.09 as “Activities”) and may engage in the Activities with or on behalf of one or more of the Loan Parties or their respective Affiliates.  Furthermore, the Agent’s Group may, in undertaking the Activities, engage in trading in financial products or undertake other investment businesses for its own account or on behalf of others (including the Loan Parties and their Affiliates and including holding, for its own account or on behalf of others, equity, debt and similar positions in the Company, another Loan Party or their respective Affiliates), including trading in or holding long, short or derivative positions in securities, loans or other financial products of one or more of the Loan Parties or their Affiliates.  Each Lender and each L/C Issuer understands and agrees that in engaging in the Activities, the Agent’s Group may receive or otherwise obtain information concerning the Loan Parties or their Affiliates (including information concerning the ability of the Loan Parties to perform their respective Obligations hereunder and under the other Loan Documents) which information may not be available to any of the Lenders or any of the L/C Issuers that are not members of the Agent’s Group.  Neither the Administrative Agent nor any member of the Agent’s Group shall have any duty to disclose to any Lender or any L/C Issuer or use on behalf of the Lenders or on behalf of the L/C Issuers, and shall not be liable for the failure to so disclose or use, any information whatsoever about or derived from the Activities or otherwise (including any information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any Loan Party or any Affiliate of any Loan Party) or to account for any revenue or profits obtained in connection with the Activities, except that the Administrative Agent shall deliver or otherwise make available to each Lender and each L/C Issuer such documents as are expressly required by any Loan Document to be transmitted by the Administrative Agent to the Lenders or the L/C Issuers.
(c)    Each Lender and each L/C Issuer further understands that there may be situations where members of the Agent’s Group or their respective customers (including the Loan Parties and their Affiliates) either now have or may in the future have interests or take actions that may conflict with the interests of any one or more of the Lenders or L/C Issuers (including the interests of the Lenders or L/C Issuers hereunder and under the other Loan Documents).  Each Lender and each L/C Issuer agrees that no member of the Agent’s Group is or shall be required to restrict its activities as a result of the Person serving as Administrative Agent being a member of the Agent’s Group, and that each member of the Agent’s Group may undertake any Activities without further consultation with or notification to any Lender or any L/C Issuer.  None of (i) this Agreement nor any other Loan Document, (ii) the receipt by the Agent’s Group of information (including confidential information) concerning the Loan Parties or their Affiliates (including information concerning the ability of the Loan Parties to perform their respective Obligations hereunder and under the other Loan Documents) nor (iii) any other matter shall give rise to any fiduciary, equitable or contractual duties (including without limitation any duty of trust or confidence) owing by the Administrative Agent or any member of the Agent’s Group to any Lender or any L/C Issuer including any such duty that would prevent or restrict the Agent’s Group from acting on behalf of customers (including the Loan Parties or their Affiliates) or for its own account.

Section 9.10.    Resignation by the Administrative Agent.  The Administrative Agent may resign as the Administrative Agent upon thirty (30) days’ prior notice to the Lenders, the L/C Issuers and the Borrowers.  If the Administrative Agent resigns under this Agreement, the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders, which successor agent shall be consented to by the Company at all times other than during the existence of an Event of Default (which consent of the 


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Company shall not be unreasonably withheld or delayed).  If no successor agent is appointed prior to the effective date of the resignation of the Administrative Agent, the Administrative Agent may appoint, after consulting with the Lenders and the Company, a successor agent from among the Lenders.  Upon the acceptance of its appointment as successor agent hereunder, the Person acting as such successor agent shall succeed to all the rights, powers and duties of the retiring Administrative Agent, and the term “Administrative Agent” shall mean such successor administrative agent and/or supplemental administrative agent, as the case may be, and the retiring Administrative Agent’s appointment, powers and duties as the Administrative Agent shall be terminated.  After the retiring Administrative Agent’s resignation hereunder as the Administrative Agent, the provisions of this Article IX, Error! Reference source not found.  and Section 11.04(b) shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Administrative Agent under this Agreement.  If no successor agent has accepted appointment as the Administrative Agent by the date which is thirty (30) days following the retiring Administrative Agent’s notice of resignation, the retiring Administrative Agent’s resignation shall nevertheless thereupon become effective and the Lenders and L/C Issuers shall perform all of the duties of the Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a successor agent as provided for above.  Upon the acceptance of any appointment as the Administrative Agent hereunder by a successor and upon the execution and filing or recording of such financing statements, or amendments thereto, and such other instruments or notices, as may be necessary or desirable, or as the Required Lenders may request, in order to (a) continue the perfection of the Liens granted or purported to be granted by the Collateral Documents or (b) otherwise ensure that Section 6.12 is satisfied, the successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, discretion, privileges, and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under the Loan Documents (if not already discharged therefrom as provided above in this Section 9.10).  After the retiring Administrative Agent’s resignation hereunder as the Administrative Agent, the provisions of this Article IX, Section 11.04(a) and Section 11.04(b) 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 Administrative Agent.
Any resignation by the Administrative Agent as Administrative Agent pursuant to this Section 9.10    shall also constitute its resignation as a Swingline Lender and its resignation as an L/C Issuer.  Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, (i) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Swingline Lender and L/C Issuer, (ii) the retiring Swingline Lender and L/C Issuer shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (iii) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit issued by Citibank, N.A., if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring L/C Issuer effectively to assume the obligations of the retiring L/C Issuer with respect to such Letters of Credit.
Anything herein to the contrary notwithstanding, if at any time the Required Lenders determine that the Person serving as Administrative Agent is (without taking into account any provision in the definition of “Defaulting Lender” requiring notice from the Administrative Agent or any other party) a Defaulting Lender, the Required Lenders (determined after giving effect to Section 11.01) may by notice to the Borrower Representative and such Person remove such Person as Administrative Agent and, with the consent of the Company (not to be unreasonably withheld), appoint a replacement Administrative Agent hereunder.  Such removal will, to the fullest extent permitted by applicable law, be effective on the date a replacement Administrative Agent is appointed.

Section 9.11.    Administrative Agent May File Proofs of Claim.  In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition 


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or other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrowers) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a)    to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuers and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuers and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under Section 2.04(j), Section 2.04(k), Section 2.10 and Section 11.04(b)) allowed in such judicial proceeding; and
(b)    to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, interim receiver, receiver and manager, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and each L/C Issuer to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders or L/C Issuers, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Agents and their respective agents and counsel, and any other amounts due the Administrative Agent under Section 2.10 and Section 11.04(b).
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or any L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or any L/C Issuer or to authorize the Administrative Agent to vote in respect of the claim of any Lender or any L/C Issuer in any such proceeding.

Section 9.12.    Collateral and Guaranty Matters.  The Lenders and the L/C Issuer irrevocably agree:
(a)    that any Lien on any property granted to or held by the Administrative Agent under any Loan Document shall be automatically released (i) upon termination of the Commitments of all the Lenders and the L/C Issuer and payment in full of all Obligations (other than contingent indemnification obligations not yet accrued and payable) and the expiration or termination of all Letters of Credit (other than Letters of Credit in which the Outstanding Amount of the L/C Obligations related thereto have been Cash Collateralized or, if satisfactory to the L/C Issuer in its sole discretion, for which a backstop letter of credit is in place), (ii) at the time the property subject to such Lien is sold, disposed of or otherwise transferred or is to be sold, disposed of or otherwise transferred as part of or in connection with any sale, disposition or other transfer permitted hereunder or under any other Loan Document, (iii) upon a designation of a Restricted Subsidiary as an Unrestricted Subsidiary permitted hereunder, with respect to the property owned by such Unrestricted Subsidiary or (iv) subject to Section 11.01, if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders;
(b)    to release or subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 7.01(i);


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(c)    that any Loan Party (other than the Company) shall be automatically released from its obligations under the Loan Documents if such Person ceases to be a Subsidiary as a result of a transaction or designation permitted hereunder;
Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Loan Party from its obligations hereunder pursuant to this Section 9.12.  In each case as specified in this Section 9.12, the Administrative Agent will promptly (and each Lender and each L/C Issuer irrevocably authorizes the Administrative Agent to), at the Company’s expense, promptly execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release or subordination of such Collateral from the assignment and security interest granted under the Collateral Documents (including UCC termination statements and mortgage releases), or to evidence the release of such Loan Party from its obligations under any of the Loan Documents, in each case in accordance with the terms of the Loan Documents and this Section 9.12 and return to the Borrowers, the possessory collateral in the possession of the Administrative Agent subject to the release.

Section 9.13.    Arrangers and Bookrunners.  Except as expressly provided herein, none of the Lenders or other Persons identified on the facing page or signature pages of this Agreement as a “Joint Lead Arranger” or “Joint Bookrunner” shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.  Without limiting the foregoing, none of the Lenders or other Persons so identified shall have or be deemed to have any fiduciary relationship with any Lender.  Each Lender and each L/C Issuer acknowledges that it has not relied, and will not rely, on any of the Lenders or other Persons so identified in deciding to enter into this Agreement or in taking or not taking action hereunder

Section 9.14.    Appointment of Supplemental Collateral Agents.  (a) It is the purpose of this Agreement and the other Loan Documents that there shall be no violation of any Law of any jurisdiction denying or restricting the right of banking corporations or associations to transact business as agent or trustee in such jurisdiction.  It is recognized that in case of litigation under this Agreement or any of the other Loan Documents, and in particular in case of the enforcement of any of the Loan Documents, or in case the Administrative Agent deems that by reason of any present or future Law of any jurisdiction it may not exercise any of the rights, powers or remedies granted herein or in any of the other Loan Documents or take any other action which may be desirable or necessary in connection therewith, the Administrative Agent is hereby authorized to appoint an additional individual or institution selected by the Administrative Agent in its sole discretion as a separate trustee, co-trustee, administrative agent, collateral agent, collateral sub-agent, collateral co-agent, administrative sub-agent or administrative co- agent (any such additional individual or institution being referred to herein individually as a “Supplemental Administrative Agent” and collectively as “Supplemental Administrative Agents”).
(a)    In the event that the Administrative Agent appoints a Supplemental Administrative Agent with respect to any Collateral, (i) each and every right, power, privilege or duty expressed or intended by this Agreement or any of the other Loan Documents to be exercised by or vested in or conveyed to the Administrative Agent with respect to such Collateral shall be exercisable by and vest in such Supplemental Administrative Agent to the extent, and only to the extent, necessary to enable such Supplemental Administrative Agent to exercise such rights, powers and privileges with respect to such Collateral and to perform such duties with respect to such Collateral, and every covenant and obligation contained in the Loan Documents and necessary to the exercise or performance thereof by such Supplemental Administrative Agent shall run to and be enforceable by either the Administrative Agent or such Supplemental Administrative Agent, and (ii) the provisions of this Article IX and of 


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Error! Reference source not found.  and Section 11.04(b) that refer to the Administrative Agent shall inure to the benefit of such Supplemental Administrative Agent and all references therein to the Administrative Agent shall be deemed to be references to the Administrative Agent and/or such Supplemental Administrative Agent, as the context may require.
(b)    Should any instrument in writing from any Loan Party be required by any Supplemental Administrative Agent so appointed by the Administrative Agent for more fully and certainly vesting in and confirming to it such rights, powers, privileges and duties, such Loan Party shall execute, acknowledge and deliver any and all such instruments promptly upon request by the Administrative Agent.  In case any Supplemental Administrative Agent, or a successor thereto, shall die, become incapable of acting, resign or be removed, all the rights, powers, privileges and duties of such Supplemental Administrative Agent, to the extent permitted by Law, shall vest in and be exercised by the Administrative Agent until the appointment of a new Supplemental Administrative Agent.

Section 9.15.    Reports and Financial Statements.  By signing this Agreement, each Lender and each L/C Issuer:
(a)    is deemed to have requested that the Administrative Agent furnish such Lender or such L/C Issuer, as applicable, promptly after they become available, copies of all financial statements required to be delivered by the Company hereunder and all field examinations, audits and appraisals of the Collateral received by the Administrative Agent (collectively, the “Reports”);
(b)    expressly agrees and acknowledges that the Administrative Agent (i) makes no representation or warranty as to the accuracy of the Reports, and (ii) shall not be liable for any information contained in any Report;
(c)    expressly agrees and acknowledges that the Reports are not comprehensive audits or examinations, that the Administrative Agent or any other party performing any audit or examination will inspect only specific information regarding the Loan Parties and will rely significantly upon the Loan Parties’ books and records, as well as on representations of the Loan Parties’ personnel;
(d)    agrees to keep all Reports confidential in accordance with the provisions of Section 11.07 (other than clause (g) thereof); and
(e)    without limiting the generality of any other indemnification provision contained in this Agreement, agrees: (i) to hold the Administrative Agent and any such other Lender preparing a Report harmless from any action the indemnifying Lender may take or conclusion the indemnifying Lender may reach or draw from any Report in connection with any Loans or Letters of Credit that the indemnifying Lender has made or may make to the Borrowers, or the indemnifying Lender’s participation in, or the indemnifying Lender’s purchase of, a Loan or Loans of the Borrowers; and (ii) to pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Lender preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney costs) incurred by the Administrative Agent and any such other Lender preparing a Report as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender; provided that no Lender shall be liable for the payment to the Administrative Agent or any other Lender preparing a Report for any portion of losses arising from such claims, actions, proceedings, damages, costs, expenses and other amounts (including attorney costs) to the extent resulting from the Administrative Agent’s or such other Lender’s own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction.


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Section 9.16.    Posting of Approved Electronic Communications.  (a) Each of the Lenders and L/C Issuers and each Loan Party agree that the Administrative Agent may, but shall not be obligated to, make the Approved Electronic Communications available to the Lenders and the L/C Issuers by posting such Approved Electronic Communications on Debt Domain, IntraLinksTM or a substantially similar electronic platform chosen by the Administrative Agent to be its electronic transmission system (the “Approved Electronic Platform”).
(b)    Although the Approved Electronic Platform and its primary web portal are secured with generally-applicable security procedures and policies implemented or modified by the Administrative Agent from time to time (including, as of the Closing Date, a dual firewall and a User ID/Password Authorization System) and the Approved Electronic Platform is secured through a single- user-per-deal authorization method whereby each user may access the Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders, the L/C Issuer and each Loan Party acknowledges and agrees that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution.  In consideration for the convenience and other benefits afforded by such distribution and for the other consideration provided hereunder, the receipt and sufficiency of which is hereby acknowledged, each of the Lenders, the L/C Issuer and each Loan Party hereby approves distribution of the Approved Electronic Communications through the Approved Electronic Platform and understands and assumes the risks of such distribution.
(c)    The Approved Electronic Platform and the Approved Electronic Communications are provided “as is” and “as available”.  Neither the Administrative Agent nor any of its Affiliates or any of their respective officers, directors, employees, agents, advisors, attorneys or representatives (each, an “Agent Affiliate”) warrant the accuracy, adequacy or completeness of the Approved Electronic Communications or the Approved Electronic Platform and each expressly disclaims liability for errors or omissions in the Approved Electronic Platform and the Approved Electronic Communications.  No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by the Agent Affiliates in connection with the Approved Electronic Platform or the Approved Electronic Communications.
(d)    Each of the Lenders, the L/C Issuers and each Loan Party agree that the Administrative Agent may, but (except as may be required by applicable law) shall not be obligated to, store the Approved Electronic Communications on the Approved Electronic Platform in accordance with the Administrative Agent’s generally-applicable document retention procedures and policies.
(e)    Each Borrower hereby acknowledges that certain of the Lenders may be “public- side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrowers or their securities) (each, a “Public Lender”).  Each Borrower hereby agrees that so long as a Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Arrangers, the L/C Issuers and the Lenders to treat the Borrower Materials as not containing any material non-public information with respect to the Borrowers or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent the Borrower Materials constitute confidential information, they shall be treated as set forth in Section 11.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available 


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through a portion of the Approved Electronic Platform designated “Public Investor;” and (z) the Administrative Agent and the Arrangers shall be entitled to treat the Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Approved Electronic Platform not designated “Public Investor.” Notwithstanding the foregoing, the Company shall not be under any obligation to mark the Borrower Materials “PUBLIC.” In connection with the foregoing, each party hereto acknowledges and agrees that the foregoing provisions are not in derogation of their confidentiality obligations under Section 11.07.

ARTICLE X
GUARANTEE

Section 10.01.    Guarantee.  (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably, guarantees to the Administrative Agent, for the ratable benefit of the Secured Parties and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Borrowers and each other Loan Party when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations.
(b)    Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum liability of each Guarantor hereunder and under the other Loan Documents shall in no event exceed the amount which can be guaranteed by such Guarantor under any applicable Law relating to fraudulent conveyances, fraudulent transfers, or the insolvency of debtors (after giving effect to the right of contribution established in Section 10.02).
(c)    Each Guarantor agrees that the Obligations may at any time and from time to time exceed the maximum amount of the liability of such Guarantor under Section 10.01(b) without impairing the guarantee contained in this Article X or affecting the rights and remedies of the Secured Parties hereunder.
(d)    The guarantee contained in this Article X shall remain in full force and effect until all the Obligations (other than any contingent indemnification obligations not then due) shall have been satisfied by payment in full, no Letter of Credit shall be outstanding (except to the extent that the Letters of Credit have been Cash Collateralized or otherwise supported, in each case, on terms satisfactory to the Administrative Agent), and the Commitments shall be terminated, notwithstanding that from time to time during the term of the Credit Agreement the Borrowers may be free from any Borrower Obligations.
(e)    No payment made by the Borrowers, any of the Guarantors, any other Guarantor or any other Person or received or collected by any Secured Party from the Borrowers, any of the Guarantors, any other Guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to reduce, release, modify or otherwise affect the liability of any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by such Guarantor in respect of the Obligations or any payment received or collected from such Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of such Guarantor hereunder until the Obligations (other than any contingent indemnification obligations not then due) are paid in full, no Letter of Credit shall be outstanding (except to the extent that the Letters of Credit have been Cash Collateralized or otherwise supported, in each case, on terms satisfactory to the Administrative Agent), and the Commitments are terminated.


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Section 10.02.    Right of Contribution.  Each Guarantor hereby agrees that to the extent that a Guarantor shall have paid more than its proportionate share of any payment made hereunder (including by way of set-off rights being exercised against it), such Guarantor shall be entitled to seek and receive contribution from and against any other Guarantor hereunder which has not paid its proportionate share of such payment.  Each Guarantor’s right of contribution shall be subject to the terms and conditions of Section 10.03.  The provisions of this Section 10.02 shall in no respect limit the obligations and liabilities of any Guarantor to the Secured Parties, and each Guarantor shall remain jointly and severally liable to the Secured Parties for the full amount guaranteed by such Guarantor hereunder.

Section 10.03.    No Subrogation.  Notwithstanding any payment made by any Guarantor hereunder or any set-off or application of funds of any Guarantor by any Secured Party, no Guarantor shall be entitled to be subrogated to any of the rights of any Secured Party against the Borrowers or any Guarantor or any collateral security or guarantee or right of offset held by any Secured Party for the payment of the Obligations, nor shall any Guarantor seek or be entitled to seek any contribution or reimbursement from the Borrowers or any other Guarantor in respect of payments made by such Guarantor hereunder, until all amounts owing to the Secured Parties by the Borrowers on account of the Obligations (other than any contingent indemnification obligations not then due) are paid in full, no Letter of Credit shall be outstanding (except to the extent that the Letters of Credit have been Cash Collateralized or otherwise supported, in each case, on terms satisfactory to the Administrative Agent), and the Commitments are terminated.  If any amount shall be paid to any Guarantor on account of such subrogation rights at any time when all of the Obligations (other than any contingent indemnification obligations not then due) shall not have been paid in full, such amount shall be held by such Guarantor in trust for the Secured Parties, segregated from other funds of such Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned over to the Administrative Agent in the exact form received by such Guarantor (duly indorsed by such Guarantor to the Administrative Agent, if required), to be applied against the Obligations, whether matured or unmatured, in such order as the Administrative Agent may determine.

Section 10.04.    Amendments, etc.  with Respect to the Borrower Obligations.  Each Guarantor shall remain obligated hereunder notwithstanding that, without any reservation of rights against any Guarantor and without notice to or further assent by any Guarantor, any demand for payment of any of the Obligations made by any Secured Party may be rescinded by such Secured Party and any of the Borrower Obligations continued, and the Obligations, or the liability of any other Person upon or for any part thereof, or any collateral security or guarantee therefor or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended, increased, amended, modified, accelerated, compromised, waived, surrendered or released by any Secured Party, and this Agreement and the other Loan Documents and any other documents executed and delivered in connection therewith may be amended, modified, supplemented or terminated, in whole or in part, as the Administrative Agent (or the Required Lenders or all Lenders, as the case may be) may deem advisable from time to time, and any collateral security, guarantee or right of offset at any time held by any Secured Party for the payment of the Obligations may be sold, exchanged, waived, surrendered or released.  No Secured Party shall have any obligation to protect, secure, perfect or insure any Lien at any time held by it as security for the Obligations or for the guarantee contained herein or any property subject thereto.

Section 10.05.    Guarantee Absolute and Unconditional.  Each Guarantor agrees that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance that constitutes a legal or equitable discharge of a guarantor or a surety other than payment in full of the Obligations.  In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:


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(a)    The guarantee under this Article X is a guaranty of payment when due and not of collectability, and is a primary obligation of each Guarantor and not merely a contract of surety.
(b)    The Administrative Agent may enforce the guarantee under this Article X upon the occurrence of an Event of Default notwithstanding the existence of any dispute between the Borrowers and any Beneficiary with respect to the existence of such Event of Default.
(c)    Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by any Secured Party upon the guarantee contained in this Article X or acceptance of the guarantee contained in this Article X.
(d)    The Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guarantee contained in this Article X and all dealings between the Borrowers and any of the Guarantors, on the one hand, and the Secured Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guarantee contained in this Article X.
(e)    To the fullest extent permitted by applicable law, each Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Borrowers or any of the Guarantors with respect to the Obligations.
(f)    Each Guarantor understands and agrees that the guarantee contained in this Article X shall be construed as a continuing, absolute and unconditional guarantee of payment and performance without regard to
(i)    the validity or enforceability of the Credit Agreement or any other Loan Document, any of the Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party,
(ii)    any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrowers or any other Person against any Secured Party,
(iii)    any acts of any legislative body or Governmental Authority affecting the Borrowers, including but not limited to, any restrictions on the conversion of currency or repatriation or control of funds or any total or partial expropriation of the Borrowers’ property, or by economic, political, regulatory or other events in the countries where the Borrowers are located, or
(iv)    any other circumstance whatsoever (with or without notice to or knowledge of a Responsible Officer of the Company) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrowers for the Obligations, or of such Guarantor under the guarantee contained in this, in bankruptcy or in any other instance.
(g)    When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but shall be under no obligation to, make a similar demand on or otherwise pursue such rights and remedies as it may have against the Borrowers, any other Guarantor or any other Person or against any collateral security or guarantee for the Obligations or any right of offset with respect thereto, and any failure by the Administrative Agent or any other Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrowers, any other Guarantor or any other Person or to realize upon any such 


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collateral security or guarantee or to exercise any such right of offset, or any release of the Borrowers, any other Guarantor or any other Person or any such collateral security or guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Secured Parties against any Guarantor.  For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.

Section 10.06.    Waiver by Guarantors.  Each Guarantor hereby waives, for the benefit of the Secured Parties: (a) any right to require any Secured Party, as a condition of payment or performance by such Guarantor, to (i) proceed against Borrowers, any other Guarantor of the Obligations or any other Person, (ii) proceed against or exhaust any security held from Borrowers, any such other Guarantor or any other Person, (iii) proceed against or have resort to any balance of any deposit account or credit on the books of any Secured Party in favor of Borrowers or any other Person, or (iv) pursue any other remedy in the power of any Secured Party whatsoever; (b) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of Borrowers or any other Guarantor including any defense based on or arising out of the lack of validity or the unenforceability of the Obligations or any agreement or instrument relating thereto or by reason of the cessation of the liability of Borrowers or any other Guarantor from any cause other than payment in full of the Obligations; (c) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (d) any defense based upon any Secured Party’s errors or omissions in the administration of the Obligations, except behavior which amounts to bad faith; (e) (i) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms hereof and any legal or equitable discharge of such Guarantor’s obligations hereunder, (ii) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (iii) any rights of set offs, recoupments and counterclaims, and (iv) promptness, diligence and any requirement that any Secured Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentments, protests, notices of protest, notices of dishonor and notices of any action or inaction, including the acceptance hereof, notices of default hereunder, the Secured Agreements or any agreement or instrument related thereto, the Secured Cash Management Agreements or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Obligations or any agreement related thereto, notices of extension of credit to Borrowers; (g) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate Guarantors or sureties, or which may conflict with the terms hereof, (h) any defenses arising from the amendment of waiver of any term of the Loan Documents; (i) any defenses arising from failure to perfect any security granted over the Collateral or any release of security over the Collateral, (j) any law or regulation of any jurisdiction or any other event affecting any term of the Loan Documents or the Obligations and (k) any other circumstances that might constitute a defense to the Guarantor.

Section 10.07.    Release of Liens and Release of Guaranty.
(a)    Subject to the terms of the Intercreditor Agreements, the Lenders hereby authorize and direct the Collateral Agent to release any Lien granted to or held by the Collateral Agent upon any Collateral (A) after payment in full of the Obligations and the termination or expiration of all Secured Hedge Agreements (other than obligations and liabilities under Secured Hedge Agreements that have been cash collateralized or as to which other arrangements reasonably satisfactory to the applicable counterparties shall have been made) and payment of any obligations due and owing under all Secured Hedge Agreements, (B) upon any sale or other transfer by any Loan Party of any Collateral that is permitted under this Agreement (other than a sale or other transfer to a Loan Party) or upon effectiveness of any written direction by the consent to the release of the security interest created under any Collateral Document in any Collateral pursuant to Section 11.01, (C) upon a designation of a Restricted Subsidiary 


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as an Unrestricted Subsidiary permitted hereunder, with respect to the Collateral owned by such Unrestricted Subsidiary, (D) upon the approval, authorization or ratification in writing by the Required Lenders (or such other percentage of the Lenders whose consent is required by Section 11.01) with respect to the release of such Collateral and (E) upon a Guarantor no longer being a Guarantor by virtue of the definition thereof or a transaction permitted hereunder, with respect to the Collateral owned by such Guarantor.  After either (v) payment in full of the Obligations and the termination or expiration of all Secured Agreements (other than obligations and liabilities under Secured Hedge Agreements that have been cash collateralized or as to which other arrangements reasonably satisfactory to the applicable counterparties shall have been made) and payment of any obligations due and owing under all Secured Agreements, (w) upon any sale or other transfer of a Loan Parry that is permitted under this Agreement (other than a sale or other transfer to a Loan Party), (x) upon a designation of a Restricted Subsidiary as an Unrestricted Subsidiary permitted hereunder, (y) upon the approval, authorization or ratification in writing by the Required Lenders (or such other percentage of the Lenders whose consent is required by Section 11.01) with respect to the release of any Guarantor under the terms of the Guaranty or (z) upon a Guarantor no longer being a Guarantor by virtue of the definition thereof or a transaction permitted hereunder, each applicable Guarantor (or, in the case of clause (w) above, the applicable Guarantor so sold or transferred) shall automatically be released from the Guaranty, all without delivery of any instrument or performance of any act by any Person; provided that any such release of guarantee obligations shall be deemed subject to the provision that such guarantee obligations shall be reinstated if after such release any portion of any payment in respect of the Obligations guaranteed thereby shall be rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Borrower or any Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Borrower or any Guarantor or any substantial part of its property, or otherwise, all as though such payment had not been made.
(b)    Notwithstanding anything to the contrary contained herein or in any other Loan Document, in connection with any termination or release pursuant to this Section 10.07, the Administrative Agent and/or Collateral Agent shall be, and are hereby irrevocably authorized by each Lender (without requirement of notice to or consent of any Lender) to execute and deliver, and shall promptly execute and deliver to the applicable Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence such termination or release (including (1) UCC termination statements and (2) in the case of a release of Mortgages, a partial release) and return to the Borrower, the possessory Collateral that is in the possession of the Collateral Agent and is the subject of such release.
(c)    Any execution and delivery of documents, or the taking of any other action, by the Administrative Agent and/or Collateral Agent pursuant to this Section 10.07 shall be without recourse to or warranty by the Administrative Agent or Collateral Agent.

Section 10.08.    Subordination of Other Obligations.  Any Indebtedness of the Borrowers or any Guarantor held as of the Closing Date or thereafter by any Guarantor (the “Obligee Guarantor”) is hereby subordinated in right of payment to the Obligations, and any such indebtedness collected or received by the Obligee Guarantor after an Event of Default has occurred and is continuing shall be held in trust for the Administrative Agent on behalf the Beneficiaries and shall forthwith be paid over to the Administrative Agent for the benefit of the Beneficiaries to be credited and applied against the Obligations but without affecting, impairing or limiting in any manner the liability of the Obligee Guarantor under any other provision hereof.


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Section 10.09.    Authority of Guarantors or Borrowers.  It shall not be necessary for any Beneficiary to inquire into the capacity or powers of any Guarantor or Borrowers or the officers, directors or agents acting or purporting to act on behalf of any of them.

Section 10.10.    Financial Condition of Borrowers.  Any Credit Extension may be made to the Borrowers or continued from time to time, without notice to or authorization from any Guarantor regardless of the financial or other condition of Borrowers at the time of such grant or continuation.  No Beneficiary shall have any obligation to disclose or discuss with any Guarantor its assessment, or any Guarantor’s assessment, of the financial condition of the Borrowers.  Each Guarantor has adequate means to obtain information from the Borrowers on a continuing basis concerning the financial condition of the Borrowers and its ability to perform its obligations under the Loan Documents, and each Guarantor assumes the responsibility for being and keeping informed of the financial condition of the Borrowers and all circumstances bearing upon the risk of nonpayment of the Obligations.  Each Guarantor hereby waives and relinquishes any duty on the part of any Beneficiary to disclose any matter, fact or thing relating to the business, operations or conditions of the Borrowers known as of the Closing Date or thereafter known by any Beneficiary.

Section 10.11.    Taxes and Payments.  The provisions of Section 3.01(a)-3.01(f) shall apply mutatis mutandis to the Guarantors and payments thereby.

Section 10.12.    Assignments.  Each Guarantor acknowledges that the Administrative Agent or any Lender may assign or otherwise transfer all or any portion of its rights and obligations under this Agreement (including, without limitation, all or any portion of its Commitments, the Loans owing to it and any Note or Notes held by it) and such assignee, transferee or participant shall thereupon become vested with all the benefits in respect thereof granted to such party herein or otherwise, in each case as and to the extent provided in Section 11.06.  No Guarantor shall have the right to assign its rights hereunder or any interest herein except in accordance with Section 11.06.

Section 10.13.    Reinstatement.  Each Guarantor agrees that if (a) any payment made by the Borrowers or any other Person and applied to the Obligations is at any time annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to be refunded or repaid, or (b) the proceeds of Collateral are required to be returned by any Beneficiary to the Borrowers or its estate, trustee, receiver or any other party including any Guarantor or its estate, trustee, or receiver under any requirement of Law, then, to the extent of such payment or repayment, any such Guarantors liability hereunder shall be and remain in full force and effect, as fully as if such payment had never been made.  If, prior to any of the foregoing, the guarantee under this Article X shall have been cancelled or surrendered (and, if any Lien or other Collateral securing such Guarantor’s liability hereunder shall have been released or terminated by virtue of such cancellation or surrender), the guarantee under this Article X (and such Lien or other Collateral) shall be reinstated in full force and effect, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of any such Guarantor in respect of the amount of such payment (or any lien or other Collateral securing such obligation).

Section 10.14.    Keepwell.  Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Loan Party to honor all of its obligations under this Guarantee in respect of Hedging Agreements (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 10.14 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 10.14, or otherwise under this Guarantee, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount).  The obligations 


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of each Qualified ECP Guarantor under this Section 10.14 shall remain in full force and effect until the Obligations have been paid in full and the Commitments and all Letters of Credit have been terminated.  Each Qualified ECP Guarantor intends that this Section 10.14     constitute, and this Section 10.14 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each Loan Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

ARTICLE XI
MISCELLANEOUS

Section 11.01.    Amendments, Etc.  No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrowers or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and the Borrowers or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall:
(a)    extend or increase the Commitment of any Lender without the written consent of each Lender directly affected thereby;
(b)    (i) extend the scheduled maturity of any Loan or (ii) postpone any date fixed by this Agreement or any other Loan Document for any payment or mandatory prepayment of principal, interest, fees or other amounts due to the Lenders (or any of them) or any mandatory reduction of the aggregate Commitments hereunder without the written consent of each Lender directly adversely affected thereby;
(c)    reduce the principal of, or the stated rate of interest specified herein on, any Loan or Unreimbursed Amount, or (subject to clause (iv) of the proviso to this Section 11.01) any fees or other amounts payable hereunder without the written consent of each Lender entitled to such amount; provided, however, that only the consent of the Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive any obligation of the Borrowers to pay interest or Letter of Credit Fees at the Default Rate;
(d)    change Section 2.07 or Section 8.04 in a manner that would alter the pro rata sharing of payments or payment priorities required thereby without the written consent of each Lender;
(e)    change any provision of this Section 11.01 or the definitions of “Required Lenders”, “Supermajority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender;
(f)    release all or substantially all of the Collateral in any transaction or series of related transactions, without the written consent of each Lender; provided that the Collateral Agent may, without consent from any other Lender, release any Collateral that is sold or otherwise Disposed of by a Loan Party in compliance with Section 7.05 or as otherwise expressly provided in the Loan Documents; or
(g)    release any Borrower or all or substantially all of the Guarantors, without the written consent of each Lender, except to the extent the release of any Guarantor is permitted pursuant to Error! Reference source not found.  or as otherwise expressly permitted under the Loan Documents (in which case such release may be made by the Administrative Agent acting alone);


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provided that (i) no amendment, waiver or consent shall, unless in writing and signed by the applicable L/C Issuer in addition to the Lenders required above, affect the rights or duties of such L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; and (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swingline Lender in addition to the Lenders required above, affect the rights and duties of the Swingline Lender under this Agreement; and (iii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; and (iv) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto and (v) no amendment, waiver or consent shall, unless in writing and signed by the Supermajority Lenders, (i) increase the advance rates or add new asset categories to the Borrowing Base, or (ii) change the definition of “Borrowing Base” or of any term included in the calculation thereof in a manner that would have the effect of increasing the Borrowing Base; provided, that the foregoing shall not limit the discretion of the Administrative Agent to change, establish or eliminate any Reserves.  Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
If any Lender does not consent to a proposed amendment, waiver, consent or release with respect to any Loan Document that requires the consent of each Lender and that has been approved by the Required Lenders, the Borrowers may replace each Nonconsenting Lender in accordance with Section 11.13; provided that such amendment, waiver, consent or release can be effected as a result of all such assignments.
Notwithstanding the foregoing, the Borrowers and the Administrative Agent may amend (and may authorize the Collateral Agent to amend) this Agreement and the other Loan Documents without the consent of any Lender (a) to cure any ambiguity, omission, mistake, error, defect or inconsistency (as reasonably determined by the Administrative Agent), so long as such amendment, modification or supplement does not adversely affect the rights of any Lender or the Lenders shall have received at least five Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment, (b) to add a Guarantor with respect to the Loans or collateral to secure the Loans or (c) to make administrative changes that do not adversely affect the rights of any Lender.  In addition, the Administrative Agent, without the consent of any Lender, shall be permitted to enter into (and direct the Collateral Agent, as applicable, to enter into) any amendments, waivers, modifications or supplements to any Intercreditor Agreement, if the Administrative Agent would have been permitted hereunder to enter into a new Intercreditor Agreement which contained the terms set forth in such amendment, waiver, modification or supplement, at the time when such amendment, waiver, modification or supplement is entered into.
Any such waiver and any such amendment or modification pursuant to this Section 11.01 shall apply equally to each of the Lenders and shall be binding upon the Borrowers, the Lenders, the L/C Issuers, the Administrative Agent and all future holders of the Loans.  In the case of any waiver, the Borrowers, the Lenders, the L/C Issuers and the Administrative Agent shall be restored to their former positions and rights hereunder and under the other Loan Documents, and any Default or Event of Default that is waived pursuant to this Section 11.01 shall be deemed to be cured and not continuing during the period of such waiver.

Section 11.02.    Notices; Effectiveness; Electronic Communications.  (a) Notices Generally.  Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or 


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registered mail or sent by telecopier as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
(i)    if to the Borrowers, the Administrative Agent or L/C Issuer, to the address, telecopier number, electronic mail address or telephone number specified for such Person on Schedule 11.02 (or such other address or number as the Borrowers, the Administrative Agent or any L/C Issuer may from time to time notify to each other party); and
(ii)    if to any other Lender, to the address, telecopier number, electronic mail address or telephone number specified in its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient).  Notices delivered through electronic communications to the extent provided in subsection (b) below shall be effective as provided in such subsection (b).
(b)    Electronic Communications.  Notices and other communications to the Lenders and the L/C Issuers hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or L/C Issuer pursuant to Article II if such Lender or such L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication.  The Administrative Agent or the Borrowers may, in their discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to the Lenders and the L/C Issuers to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.
Each Lender agrees that notice to it specifying that any Borrower Materials or other notices or communications have been posted to the Approved Electronic Platform shall constitute effective delivery of such information, documents or other materials to such Lender for purposes of this Agreement; provided that if requested by any Lender, the Administrative Agent shall deliver a copy of the Borrower Materials, notices or other communications to such Lender by email or fax.
(c)    The Approved Electronic Platform.  THE APPROVED ELECTRONIC PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE APPROVED ELECTRONIC PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.  NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A 


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PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE APPROVED ELECTRONIC PLATFORM.  In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrowers, any Lender, L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrowers’ or the Administrative Agent’s transmission of Borrower Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses have resulted from the gross negligence or willful misconduct of such Agent Party as determined by a court of competent jurisdiction in a final, non-appealable judgment; provided, however, that in no event shall the Agent Party have any liability to the Borrowers, any Lender, L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).
(d)    Change of Address, Etc.  Each of the Borrowers, the Administrative Agent and each L/C Issuer may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto.  Each other Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the Borrowers, the Administrative Agent and each L/C Issuer.  In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender.
(e)    Reliance by Administrative Agent, L/C Issuers and Lenders.  The Administrative Agent, the L/C Issuers and the Lenders shall be entitled to rely and act upon any notices (including telephonic Borrowing Notices) purportedly given by or on behalf of the Borrowers even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof.  All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.

Section 11.03.    No Waiver; Cumulative Remedies.  No failure by any Lender, L/C Issuer or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall impair such right, remedy, power or privilege or be construed to be a waiver of any default or acquiescence therein; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder or under any other Loan Document preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges herein provided and in the other Loan Documents are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.  Any forbearance or failure to exercise, and any delay in exercising, any right, power or remedy hereunder shall not impair any such right, power or remedy or be construed to be a waiver thereof, nor shall it preclude the further exercise of any such right, power or remedy.

Section 11.04.    Expenses; Indemnity; Damage Waiver.
(a)    Costs and Expenses.  The Borrowers shall pay (i) all reasonable and documented out-of-pocket legal and other expenses incurred by the Arrangers, the Agents and their respective Affiliates and the Collateral Agent (including (x) the reasonable and documented fees, charges and disbursements of a single counsel for the Agents and the Arrangers, a single local counsel in each 


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relevant jurisdiction and any special counsel reasonably deemed necessary by the Administrative Agent and a separate counsel for the Collateral Agent and (y) per diem field examination costs (whether incurred before or after the date hereof)), syndication costs, the preparation, due diligence, negotiation, execution, delivery, administration and enforcement of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable and documented out-of-pocket expenses incurred by any L/C Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable and documented out-of-pocket legal and other expenses (including the cost of any investigation or preparation) incurred by the Arrangers, any Agent, L/C Issuer or any Lender or Collateral Agent (including the reasonable fees, charges and disbursements of any counsel for any Agent, L/C Issuer or any Lender, limited to one firm of counsel for all Indemnitees (as defined below), taken as a whole, and if necessary, by a single firm of local counsel in each appropriate jurisdiction for all such Indemnitees, taken as a whole (and, in the case of an actual or perceived conflict of interest where the indemnified party affected by such conflict notifies the Borrower Representative of the existence of such conflict, of another firm of counsel for such affected Indemnitees and local counsel for the conflicted party and a separate counsel for the Collateral Agent), in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including all such reasonable and documented out- of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.  Each Guarantor agrees to pay or reimburse each Secured Party for all its reasonable and documented out-of-pocket expenses incurred in collecting against such Guarantor under the guarantee contained in Article X or otherwise enforcing or preserving any rights under this Agreement and the other Loan Documents to which such Guarantor is a party, including, without limitation, the fees and disbursements of counsel to each Secured Party and of counsel to the Administrative Agent.
(b)    Indemnification by the Borrowers.  The Borrowers and each Guarantor shall indemnify the Administrative Agent (and any sub-agent thereof), the Arrangers, each Lender and each L/C Issuer, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities (including any Environmental Liability) and related reasonable and documented out-of- pocket fees and expenses (including the reasonable documented out-of-pocket fees, charges and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee (whether or not such investigation, litigation, claim or proceeding is brought by any Borrower, the Company’s equity holders, affiliates or creditors or an Indemnitee and whether or not any such Indemnitee is otherwise a party thereto) or by the Borrowers or any other Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub- agent thereof) and its Related Parties only, the administration and enforcement of this Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit and (iii) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by a Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto (all of the foregoing, collectively, the “Indemnified Liabilities”); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, 


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liabilities or related expenses are found in a final, non-appealable judgment by a court of competent jurisdiction to (x) have resulted from the bad faith, gross negligence or willful misconduct of such Indemnitee (or any of such Indemnitee’s controlled affiliates or any of its or their respective officers, directors, employees, agents, controlling persons or members of any of the foregoing), (y) result from a claim brought by the Borrowers or any other Loan Party against an Indemnitee for material breach of such Indemnitee’s obligations hereunder or under any other Loan Document or (z) have arisen out of or in connection with any claim, litigation, loss or proceeding not involving an act or omission of the Borrowers or any of their respective Related Parties and that is brought by an Indemnitee against another Indemnitee (other than any claims against an Indemnitee in its capacity or in fulfilling its role as an administrative agent or arranger or any similar role under this Agreement or any claims arising out of any act or omission of the Borrowers or any of its Affiliates).  The Borrowers also agree that no Indemnitee shall have any liability (whether direct or indirect, in contract, tort or otherwise) to any Borrower for or in connection with this Agreement or the other Loan Documents, any transactions contemplated hereby or thereby or such Indemnitees’ role or services in connection herewith or therewith, except to the extent that any liability for losses, claims, demands, damages, liabilities or expenses incurred by any Borrower (i) resulted from the bad faith, gross negligence or willful misconduct of such Indemnitee or (ii) resulted from a material breach by such Indemnitee (or any of such Indemnitee’s controlled affiliates or any of its or their respective officers, directors, employees, agents, controlling persons or members of any of the foregoing) of the terms of this Agreement or the other Loan Documents (in the case of clauses (i) and (ii), as determined by a court of competent jurisdiction in a final, non-appealable judgment).  This Section 11.04(b) shall not apply with respect to Taxes other than any taxes that represent losses, claims, damages, etc.  arising from any non-Tax claim.
Each Borrower acknowledges that information and other materials relative to the Facility and the transactions contemplated hereby may be transmitted through the Approved Electronic Platform.  No Indemnitee will be liable to any Borrower or any of its affiliates or any of their respective security holders or creditors for any damages arising from the use by unauthorized persons of information or other materials sent through the Approved Electronic Platform that are intercepted by such persons, except to the extent such damages (i) resulted from the bad faith, gross negligence or willful misconduct of such Indemnitee or (ii) resulted from a material breach by such Indemnitee (or any of such Indemnitee’s controlled affiliates or any of its or their respective officers, directors, employees, agents, controlling persons or members of any of the foregoing) of the terms of this Agreement or the other Loan Documents (in the case of clauses (i) and (ii), as determined by a court of competent jurisdiction in a final, non- appealable judgment).
(c)    Reimbursement by Lenders.  To the extent that the Borrowers for any reason fail to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it to the Administrative Agent (or any sub-agent thereof), any L/C Issuer or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), such L/C Issuer or such Related Party, as the case may be, such Lender’s pro rata share (based on the Loans and unused Commitments held by such Lender relative to the total Loans and unused Commitments then outstanding) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) or such L/C Issuer in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) or L/C Issuer in connection with such capacity.    The obligations of the Lenders under this subsection (c) are subject to the provisions of Section 2.13(d).
(d)    Waiver of Consequential Damages, Etc.  To the fullest extent permitted by applicable law, no party hereto shall assert, and each hereby waives, any claim against the Borrowers and their respective Affiliates or any Indemnitee, on any theory of liability, for special, indirect, 


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consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof; provided that such waiver shall not limit any Loan Party’s reimbursement or indemnification obligations under Sections 11.04(a) or 11.04(b), respectively.  No Indemnitee referred to in subsection (b) above or the Borrowers and their respective Affiliates shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby, except to the extent such damages result from the gross negligence or willful misconduct of such Indemnitee, in each case, as determined by the final nonappealable judgment of a court of competent jurisdiction.
(e)    Payments.  All amounts due under this Section shall be payable not later than ten Business Days after demand therefor.
(f)    Survival.  The agreements in this Section shall survive the resignation of the Administrative Agent and the Arrangers, the replacement of any Lender, the termination of the aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations, including any obligations in respect of any Secured Agreements.  The reimbursement, indemnity and contribution obligations of the Borrowers under this Section 11.04 will be in addition to any liability which the Borrowers may otherwise have, will extend upon the same terms and conditions to any affiliate of any Indemnitee and the partners, members, directors, agents, employees, and controlling persons (if any), as the case may be, of any Indemnitee and any such affiliate, and will be binding upon and inure to the benefit of any successors and assigns of the Company, any Indemnitee, any such affiliate, and any such Person.

Section 11.05.    Payments Set Aside.  To the extent that any payment by or on behalf of the Borrowers is made to the Administrative Agent, any L/C Issuer or any Lender, or the Administrative Agent, any L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent, any L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Overnight Rate from time to time in effect.  The obligations of the Lenders and the L/C Issuers under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.

Section 11.06.    Successors and Assigns.  (a) Successors and Assigns Generally.  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 Loan Party may assign or otherwise transfer any of its rights or obligations hereunder, except through a transaction permitted hereunder, without the prior written consent of the Administrative Agent and each Lender, and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of Section 11.06(b), (ii) by way of participation in accordance with the provisions of Section 


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11.06(d), or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 11.06(f).  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, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C Issuers and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b)    Assignments by Lenders.  Any Lender may at any time 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 Commitments or Loans (including for purposes of this Section 11.06(b), participations in L/C Obligations and Swingline Loans) at the time owing to it), provided that:
(i)    except in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Acceptance, as of such “Trade Date”, shall not be less than $5,000,000;
(ii)    each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned; and
(iii)    the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee in the amount of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment.  The Eligible Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Acceptance, the Eligible Assignee thereunder shall be a party to this Agreement 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 Sections 3.01, 3.04, 3.05 and 11.04 with respect to facts and circumstances occurring prior to the effective date of such assignment.  Upon request, the Borrowers (at their expense) shall execute and deliver a Note to the assignee Lender.  Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection 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 Section 11.06(d).
Each Lender, upon succeeding to an interest in the Commitments and Loans, represents and warrants as of the effective date of such Assignment and Acceptance that (i) it is an Eligible Assignee; (ii) it has experience and expertise in the making of or investing in commitments or loans such as the applicable Commitments or Loans, as the case may be and (iii) it will make or invest in, as the case may be, its 


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Commitments or Loans for its own account in the ordinary course and without a view to distribution of such Commitments or Loans within the meaning of the Securities Act or the Exchange Act or other federal securities laws (it being understood that, subject to the provisions of this Section 11.06, the disposition of such Commitments or Loans or any interests therein shall at all times remain within its exclusive control).
(c)    Register.  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 Commitments of, and principal amounts of the Loans and L/C Obligations 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 the Borrowers and the L/C Issuer, at any reasonable time and from time to time upon reasonable prior notice.
(d)    Participations.  Any Lender may at any time, without the consent of, or notice to, the Borrowers or the Administrative Agent, sell participations to any Person (other than a natural person or the Borrowers or any of the Borrowers’ Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swingline 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 Administrative Agent, the Lenders and the L/C Issuers 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, waiver or other modification described in clauses (a), (b), (c), (f) and (g) of the first proviso to Section 11.1 that affects such Participant (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Commitment shall not constitute a change in the terms of such participation, and that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant’s participation is not increased as a result thereof).  Subject to subsection (e) of this Section, the Borrowers agree that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment; provided, further, that in the case of Section 3.01, such Participant shall have complied with the requirements of such section.  To the extent permitted by law, each Participant also shall be entitled to the benefits of Error! Reference source not found.  as though it were a Lender, provided such Participant agrees to be subject to Section 2.14 as though it were a Lender.
Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that the relevant parties, acting reasonably and in 


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good faith, determine that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the U.S. Treasury Regulations.  The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.  For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(e)    Limitations upon Participant Rights.    A Participant shall not be entitled to receive any greater payment under Section 3.01, Section 3.04 or Section 3.05 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 Company’s prior written consent or such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation.
(f)    Certain Pledges.  Any Lender may at any time pledge or assign to any Person a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or other central bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(g)    Electronic Execution of Assignments.  The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Acceptance shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state Laws based on the Uniform Electronic Transactions Act.
(h)    Resignation as L/C Issuer or Swingline Lender after Assignment.  Notwithstanding anything to the contrary contained herein, if at any time a L/C Issuer or Swingline Lender, as applicable, assigns all of its Commitment and Loans pursuant to Section 11.06(b), such L/C Issuer or Swingline Lender, as applicable, may, (i) upon 30 days’ notice to the Borrowers, the other Lenders and other L/C Issuers, resign as L/C Issuer or Swingline Lender, as applicable, or (ii) upon 10 days’ notice to the Borrowers, the other Lenders and other L/C Issuers, appoint an Affiliate of such L/C Issuer or Swingline Lender, as applicable, as a successor L/C Issuer or Swingline Lender hereunder.  In the event of any such resignation as L/C Issuer or Swingline Lender pursuant to clause (i) of the preceding sentence, the Borrowers shall be entitled to appoint from among the Lenders and their Affiliates a successor L/C Issuer or Swingline Lender hereunder; provided, however, that no failure by the Borrowers to appoint any such successor shall affect the resignation of such L/C Issuer or Swingline Lender, as the case may be.  If any L/C Issuer resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.04(d)).  If Citibank, N.A.  resigns as Swingline Lender, it shall retain all the rights of the Swingline Lender provided for hereunder with respect to Swingline Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swingline Loans pursuant 


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to Section 2.05(c).  Upon the appointment of a successor L/C Issuer and/or Swingline Lender, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swingline Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to such L/C Issuer to effectively assume the obligations of such L/C Issuer with respect to such Letters of Credit.

Section 11.07.    Treatment of Certain Information; Confidentiality.  Each of the Agents, Arrangers and the Lenders agrees that it will treat as confidential all information provided to it hereunder or under any other Loan Document by or on behalf of the Company or any of its Subsidiaries or Affiliates, except to the extent such information (a) is publicly available or becomes publicly available other than by reason of disclosure by the Agents, Arrangers or the Lenders, any of their respective affiliates or representatives in violation of this Agreement or the other Loan Documents, (b) was received by the Agents, Arranger and the Lenders from a source (other than the Company or any of its affiliates, advisors, members, directors, employees, agents or other representatives) not known by the Agents, Arrangers and the Lenders to be prohibited from disclosing such information to such Person by a legal, contractual or fiduciary obligation to the Company and (c) to the extent that such information was already in the Agents’, Arrangers’ and the Lenders’ possession from a source other than the Company or any of its affiliates, advisors, members, directors, employees, agents or other representatives or is independently developed by such Person without the use of or reference to any such confidential information; provided, however, that nothing herein will prevent the Agents, Arrangers and the Lenders from disclosing any such information (a) pursuant to the order of any court or administrative agency or in any pending legal or administrative proceeding, or otherwise as required by applicable Law or compulsory legal process (in which case such Person agrees to inform the Company promptly thereof to the extent not prohibited by law), (b) upon the request or demand of any regulatory authority or any self-regulatory authority having jurisdiction over such Person or any of its affiliates, (c) to such Person’s affiliates and their respective officers, directors, partners, members, employees, legal counsel, independent auditors and other experts or agents who need to know such information and on a confidential basis and who have been advised of their obligation to keep information of this type confidential or are bound by an agreement to keep information of this type confidential (with such Agent, Arrangers or Lender being responsible for such person’s compliance with this Section 11.07), (d) to potential and prospective Lenders, assignees, participants and any direct or indirect contractual counterparties to any Secured Agreements relating to the Company or its obligations under this Agreement (other than Disqualified Institutions), in each case, subject to such recipient’s agreement (which agreement may be in writing or by “click through” agreement or other affirmative action on the part of the recipient to access such information and acknowledge its confidentiality obligations in respect thereof pursuant to customary syndication practice) to keep such information confidential on substantially the terms set forth in this Section 11.07, (e) to ratings agencies who have agreed to keep such information confidential on terms no less restrictive than this Section 11.07 in any material respect or otherwise on terms acceptable to the Company in connection with obtaining ratings of the Loans, (f) for purposes of establishing a “due diligence” defense, (g) on a confidential basis, to (i) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Loans and (ii) market data collectors, similar service providers to the lending industry and service providers to the Administrative Agent or the Collateral Agent in connection with the administration, settlement and management of this Agreement and the Loan Documents or (h) disclosures in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder.  In addition, the Administrative Agent or any Lender, in consultation with the Company, may place the customary “tombstone” advertisement in publications of its choice at its expense; provided, that, no “tombstone” advertisement may be used or submitted for publication without the prior written consent of the Company and, thereafter, the Administrative Agent may, from time to time, publish such information 


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until such time that the Company shall have requested in writing that the Arrangers cease any such further publication.
Each of the Agents, the Arrangers and the Lenders acknowledges that (a) the information may include material non-public information concerning the Company or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Laws, including Federal and state securities laws

Section 11.08.    Right of Setoff.  In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, upon the occurrence of any Event of Default or at maturity, each Lender, each L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, such L/C Issuer or any such Affiliate to or for the credit or the account of the Borrowers or any other Loan Party against any and all of the obligations of the Borrowers or such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or such L/C Issuer, irrespective of whether or not such Lender or such L/C Issuer shall have made any demand under this Agreement or any other Loan Document or are owed to a branch or office of such Lender or such L/C Issuer different from the branch or office holding such deposit or obligated on such indebtedness.  The rights of each Lender, such L/C Issuer and their respective Affiliates under this Section 11.08 are in addition to other rights and remedies (including other rights of setoff) that such Lender, such L/C Issuer or their respective Affiliates may have.  Each Lender and L/C Issuer agrees to notify the Borrowers and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.

Section 11.09.    Usury Saving Clause.  Notwithstanding any other provision herein, the aggregate interest rate charged with respect to any of the Obligations, including all charges or fees in connection therewith deemed in the nature of interest under applicable law shall not exceed the Highest Lawful Rate.  If the rate of interest (determined without regard to the preceding sentence) under this Agreement at any time exceeds the Highest Lawful Rate, the outstanding amount of the Loans made hereunder shall bear interest at the Highest Lawful Rate until the total amount of interest due hereunder equals the amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect.  In addition, if when the Loans made hereunder are repaid in full the total interest due hereunder (taking into account the increase provided for above) is less than the total amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect, then to the extent permitted by law, the Borrower shall pay to the Administrative Agent an amount equal to the difference between the amount of interest paid and the amount of interest which would have been paid if the Highest Lawful Rate had at all times been in effect.  Notwithstanding the foregoing, it is the intention of Lenders and the Borrower to conform strictly to any applicable usury laws.  Accordingly, if any Lender contracts for, charges, or receives any consideration which constitutes interest in excess of the Highest Lawful Rate, then any such excess shall be cancelled automatically and, if previously paid, shall at such Lender’s option be applied to the outstanding amount of the Loans made hereunder or be refunded to the Borrower.

Section 11.10.    Counterparts; Integration; Effectiveness.  This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof 


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and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.  Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto.  Delivery of an executed counterpart of a signature page of this Agreement or of a Lender Addendum by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement.

Section 11.11.    Survival of Representations and Warranties.  All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof.  Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.

Section 11.12.    Severability.  If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions.  The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

Section 11.13.    Replacement of Lenders.  If (a) any Lender requests compensation under Section 3.04, (b) the Borrowers are required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, (c) any Lender is at such time a Defaulting Lender or has given notice pursuant to Section 3.02 or (d) any Lender becomes a Nonconsenting Lender (as hereinafter defined), then the Borrowers may, at their sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to (and such Lender shall) assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 11.06), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an assignee selected by the Borrowers that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that (i) the Administrative Agent shall have received the assignment fee specified in Section 11.06(b); (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts); (iii) in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter; (iv) such assignment does not conflict with applicable Laws; and (v) neither the Administrative Agent nor any Lender shall be obligated to be or to find the assignee.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrowers to require such assignment and delegation cease to apply.  In the event that (x) the Borrowers or the Administrative Agent has requested the Lenders to consent to a departure or waiver of any provisions of the Loan Documents or to agree to any amendment thereto and (y) the Required Lenders have agreed to such consent, waiver 


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or amendment, then any Lender who does not agree to such consent, waiver or amendment shall be deemed a “Nonconsenting Lender.” Any such replacement shall not be deemed a waiver of any rights that the Borrowers shall have against the replaced Lender.
Each Lender agrees that if the Company exercises its option hereunder to cause an assignment by such Lender as a Nonconsenting Lender or otherwise pursuant to this Section 11.13, such Lender shall, promptly after receipt of written notice of such election, execute and deliver all documentation necessary to effectuate such assignment in accordance with Section 11.06.  In the event that a Lender does not comply with the requirements of the immediately preceding sentence within one Business Day after receipt of such notice, each Lender hereby authorizes and directs the Administrative Agent to execute and deliver such documentation as may be required to give effect to an assignment in accordance with Section 11.06 on behalf of a Nonconsenting Lender or Lender replaced pursuant to this Section 11.13, and any such documentation so executed by the Administrative Agent shall be effective for purposes of documenting an assignment pursuant to Section 11.06.

Section 11.14.    Governing Law; Jurisdiction; Etc.  (a) GOVERNING LAW.  THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(b)    CONSENT TO JURISDICTION.  SUBJECT TO CLAUSE (E) OF THE FOLLOWING SENTENCE, ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT OF OR RELATING HERETO OR ANY OTHER LOAN DOCUMENTS, OR ANY OF THE OBLIGATIONS, SHALL BE BROUGHT IN ANY FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN THE BOROUGH OF MANHATTAN OR, IF THAT COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, IN ANY STATE COURT LOCATED IN THE CITY AND COUNTY OF NEW YORK.  BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH LOAN PARTY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE (SUBJECT TO CLAUSE (E) BELOW) JURISDICTION AND VENUE OF SUCH COURTS; (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE LOAN PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 11.02; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE LOAN PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES THAT THE AGENTS, ARRANGERS, COLLATERAL AGENT AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY LOAN PARTY IN THE COURTS OF ANY OTHER JURISDICTION IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER ANY LOAN DOCUMENT OR AGAINST ANY COLLATERAL OR THE ENFORCEMENT OF ANY JUDGMENT, AND HEREBY SUBMITS TO THE JURISDICTION OF, AND CONSENTS TO VENUE IN, ANY SUCH COURT.

Section 11.15.    Waiver of Jury Trial.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING 


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HEREUNDER OR UNDER ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED.  THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.  EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS.  EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.  THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 11.15 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER.  IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

Section 11.16.    Designation of Secured Agreements.  (a) The Borrowers and any Cash Management Bank or Hedge Bank may from time to time designate a Cash Management Agreement or Hedging Agreement permitted hereunder as a Secured Agreement upon written notice (a “Designation Notice”) to the Administrative Agent from the Borrowers and such Cash Management Bank or Hedge Bank, in form reasonably acceptable to the Administrative Agent, which Designation Notice shall include a description of such Secured Agreement and the maximum amount of obligations thereunder which are to constitute Obligations (each, a “Designated Amount”); provided that (x) no such Designated Amount with respect to any Secured Agreement shall constitute Obligations to the extent that, at the time of delivery of the applicable Designation Notice and after giving effect to such Designated Amount (including to the reserve for Secured Agreements to be established by the Administrative Agent in connection therewith), the Availability would be less than zero and (y) any such Designated Amount shall constitute Obligations only to the extent that such Designated Amount, together with all other Designated Amounts under Secured Agreements theretofore designated hereunder and constituting Obligations, does not exceed, $10,000,000.
(b)    The Borrowers and any counterparty to a Secured Agreement may increase, decrease or terminate any Designated Amount in respect of such Secured Agreement upon written notice to the Administrative Agent; provided that any increase in a Designated Amount shall be deemed to be a new designation of a Designated Amount pursuant to a new Designation Notice and shall be subject to the limitations set forth in Section 11.16(a).  No obligations under any Secured Agreement in excess of the applicable Designated Amount shall constitute Obligations hereunder or the other Loan Documents.
(c)    No counterparty to a Secured Agreement that obtains the benefits of Section 8.03, Article X, or any Collateral by virtue of the provisions hereof or of any Guaranty or any Collateral Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents.  The Administrative Agent shall not be required 


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to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Secured Agreements unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable counterparty to a Secured Agreement.

Section 11.17.    No Advisory or Fiduciary Responsibility.  In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrowers and the other Loan Parties acknowledge and agree that: (i) (A) the arranging and other services regarding this Agreement provided by the Administrative Agent and the Arrangers are arm’s-length commercial transactions between the Borrowers, the other Loan Parties and their respective Affiliates, on the one hand, and the Administrative Agent and the Arrangers, on the other hand, (B) the Borrowers and the other Loan Parties have consulted their own legal, accounting, regulatory and tax advisors to the extent deemed appropriate by such Loan Parties, and (C) the Borrowers and the other Loan Parties are capable of evaluating, and understand and accept, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Administrative Agent and the Arrangers each is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrowers, the other Loan Parties, their respective Affiliates or any other Person and (B) neither the Administrative Agent nor the Arrangers have any obligation to the Borrowers, the other Loan Parties or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent and the Arrangers and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrowers and their Affiliates, and neither the Administrative Agent nor the Arrangers have any obligation to disclose any of such interests to the Borrowers or their Affiliates.  To the fullest extent permitted by law, the Borrowers and each other Loan Party hereby waives and releases any claims that it may have against the Administrative Agent and the Arrangers with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.

Section 11.18.    Joint and Several Liability.  All Loans, upon funding, shall be deemed to be jointly funded to and received by the Borrowers.  Each Borrower is jointly and severally liable under this Agreement for all Obligations, regardless of the manner or amount in which proceeds of Loans are used, allocated, shared or disbursed by or among the Borrowers themselves, or the manner in which the Administrative Agent, any Lender and/or any L/C Issuer accounts for such Loans or other Credit Extensions on its books and records.  Each Borrower shall be liable for all amounts due to the Administrative Agent, any Lender and/or any L/C Issuer from the Borrowers under this Agreement, regardless of which Borrower actually receives Loans or other Credit Extensions hereunder or the amount of such Loans and Credit Extensions received or the manner in which the Administrative Agent, such Lender and/or such L/C Issuer accounts for such Loans or other Credit Extensions on its books and records.  Each Borrower’s Obligations with respect to Loans and other Credit Extensions made to it, and such Borrower’s Obligations arising as a result of the joint and several liability of such Borrower hereunder with respect to Loans made to the other Borrowers hereunder shall be separate and distinct obligations, but all such Obligations shall be primary obligations of such Borrower.  The Borrowers acknowledge and expressly agree with the Administrative Agent, each Lender and each L/C Issuer that the joint and several liability of each Borrower is required solely as a condition to, and is given solely as inducement for and in consideration of, credit or accommodations extended or to be extended under the Loan Documents to any or all of the other Borrowers and is not required or given as a condition of Credit Extensions to such Borrower.  Each Borrower’s Obligations under this Agreement shall, to the fullest extent permitted by law, be unconditional irrespective of (i) the release of any other Borrower pursuant to Section 9.12 or the validity or enforceability, avoidance, or subordination of the Obligations of any other Borrower or of any promissory note or other document 


154
    







evidencing all or any part of the Obligations of any other Borrower, (ii) the absence of any attempt to collect the Obligations from any other Borrower, or any other security therefor, or the absence of any other action to enforce the same, (iii) the waiver, consent, extension, forbearance, release, or granting of any indulgence by the Administrative Agent, any Lender and/or any L/C Issuer with respect to any provision of any instrument evidencing the Obligations of any other Borrower, or any part thereof, or any other agreement now or hereafter executed by any other Borrower and delivered to the Administrative Agent, any Lender and/or any L/C Issuer, (iv) the failure by the Administrative Agent, any Lender and/or any L/C Issuer to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the Obligations of any other Borrower, (v) the Administrative Agent’s, any Lender’s and/or any L/C Issuer’s election, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code, (vi) any borrowing or grant of a security interest by any other Borrower, as debtor-in- possession under Section 364 of the Bankruptcy Code, (vii) the disallowance of all or any portion of the Administrative Agent’s, any Lender’s and/or any L/C Issuer’s claim(s) for the repayment of the Obligations of any other Borrower under Section 502 of the Bankruptcy Code, or (viii) any other circumstances which might constitute a legal or equitable discharge or defense of a guarantor or of any other Borrower.    With respect to any Borrower’s Obligations arising as a result of the joint and several liability of the Borrowers hereunder with respect to Loans or other Credit Extensions made to any of the other Borrowers hereunder, such Borrower waives, until the Obligations shall have been paid in full and this Agreement shall have been terminated, any right to enforce any right of subrogation or any remedy which the Administrative Agent, any Lender and/or any L/C Issuer now has or may hereafter have against any other Borrower, any endorser or any guarantor of all or any part of the Obligations, and any benefit of, and any right to participate in, any security or collateral given to the Administrative Agent, any Lender and/or any L/C Issuer to secure payment of the Obligations or any other liability of any Borrower to the Administrative Agent, any Lender and/or any L/C Issuer.  Upon any Event of Default, the Administrative Agent may proceed directly and at once, without notice, against any Borrower to collect and recover the full amount, or any portion of the Obligations, without first proceeding against any other Borrower or any other Person, or against any security or collateral for the Obligations.    Each Borrower consents and agrees that the Administrative Agent shall be under no obligation to marshal any assets in favor of any Borrower or against or in payment of any or all of the Obligations.  Notwithstanding anything to the contrary in the foregoing, any Person released from its Obligations in accordance with Section 9.12 shall be simultaneously released from the foregoing provisions of this Section 11.18.

Section 11.19.    Contribution and Indemnification Among the Borrowers.  Each Borrower is obligated to repay the Obligations as a joint and several obligor under this Agreement.  To the extent that any Borrower shall, under this Agreement as a joint and several obligor, sell any of its assets to satisfy or otherwise repay any of the Obligations constituting Loans made to another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (an “Accommodation Payment”), then the Company making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each of the other Borrowers, in an amount, for each of such other Borrowers, if any, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s Allocable Amount (as defined below) and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers.  As of any date of determination, the “Allocable Amount” of each Borrower shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (a) rendering such Borrower “insolvent” within the meaning of Section 101(31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA.  All rights and claims of contribution, indemnification, 


155
    







and reimbursement under this Section shall be subordinate in right of payment to the prior payment in full of the Obligations.  The provisions of this Section 11.19 shall, to the extent expressly inconsistent with any provision in any Loan Document, supersede such inconsistent provision.  If any Borrower discharges the Obligation (or any part of it) pursuant to Section 11.18, the corresponding claim against the relevant Loan Party shall not pass over and no rights and claims of the Secured Parties under any Loan Document shall pass to any Loan Party by subrogation or otherwise.

Section 11.20.    Agency of the Borrower Representative for Each Other Borrower.  Each of the other Borrowers irrevocably appoints the Company as its agent for all purposes relevant to this Agreement (in such capacity, the “Borrower Representative”), including the giving and receipt of notices and execution and delivery of all documents, instruments, and certificates contemplated herein (including, without limitation, execution and delivery to the Administrative Agent of Borrowing Base Certificates and Borrowing Notices) and all modifications hereto.  Any acknowledgment, consent, direction, certification, or other action which might otherwise be valid or effective only if given or taken by all or any of the Borrowers or acting singly, shall be valid and effective if given or taken only by the Borrower Representative, whether or not any of the other Borrowers join therein, and the Administrative Agent, the Lenders and the L/C Issuers shall have no duty or obligation to make further inquiry with respect to the authority of the Borrower Representative under this Section 11.20; provided that nothing in this Section 11.20 shall limit the effectiveness of, or the right of the Administrative Agent, the Lenders and the L/C Issuers to rely upon, any notice (including, without limitation, a Borrowing Notice), document, instrument, certificate, acknowledgment, consent, direction, certification or other action delivered by any Borrower pursuant to this Agreement.

Section 11.21.    USA Patriot Act Notice.  Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrowers that pursuant to the requirements of PATRIOT Act, it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of each Loan Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify each Loan Party in accordance with the Act.

Section 11.22.    Time of the Essence.  Time is of the essence of the Loan Documents.

Section 11.23.    Acknowledgement and Consent to Bail-In of EEA Financial Institutions.  Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a)    the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
(b)    the effects of any Bail-in Action on any such liability, including, if applicable:
(i)    a reduction in full or in part or cancellation of any such liability;
(ii)    a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other 


156
    







instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii)    the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.

Section 11.24.    Intercreditor Agreement.
(a)    The Administrative Agent is authorized to enter into any Intercreditor Agreement, and the parties hereto acknowledge that each Intercreditor Agreement is binding upon them.  Each Lender (a) hereby consents to the subordination of the Liens on the Collateral other than the ABL Priority Collateral securing the Obligations on the terms set forth in the Term Loan Intercreditor Agreement, (b) hereby agrees that it will be bound by and will take no actions contrary to the provisions of any Intercreditor Agreement and (c) hereby authorizes and instructs the Administrative Agent to enter into each Intercreditor Agreement and to subject the Liens on the Collateral securing the Obligations to the provisions thereof.  The foregoing provisions are intended as an inducement to the Secured Parties to extend credit to the Borrowers and such Secured Parties are intended third-party beneficiaries of such provisions and the provisions of each Intercreditor Agreement.
(b)    Each Lender, by its execution and delivery of this Agreement (whether directly on the Closing Date or as an assignee of a Lender), hereby (a) confirms its agreement to the foregoing provisions of this Section 11.24 and (b) agrees to be bound by the terms of each Intercreditor Agreement as an “ABL Claimholder” (as defined in the Intercreditor Agreement).
[Signature Pages Follow]








157
    








IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
	
		
	BORROWERS:
CONTURA ENERGY, INC.

	By:
	/s/ C. Andrew Eidson

	 
	Name:   C. Andrew Eidson

	 
	Title:   Executive Vice President, Chief Financial Officer and Treasurer










	
		
	CONTURA ENERGY, LLC

	By:
	/s/ C. Andrew Eidson

	 
	Name:   C. Andrew Eidson

	 
	Title:   Manager and President










	
		
	CONTURA ENERGY SERVICES, LLC

	By:
	/s/ C. Andrew Eidson

	 
	Name:   C. Andrew Eidson

	 
	Title:   Executive Vice President, Chief Financial Officer and Treasurer










	
		
	CONTURA MINING HOLDING, LLC

	By:
	/s/ C. Andrew Eidson

	 
	Name:   C. Andrew Eidson

	 
	Title:   Executive Vice President, Chief Financial Officer and Treasurer










[SIGNATURE PAGE TO CREDIT AGREEMENT]
    









	
		
	EMERALD CONTURA, LLC 
DICKENSON-RUSSELL CONTURA, 
LLC NICHOLAS CONTURA, LLC 
CONTURA COAL RESOURCES, LLC 
CONTURA WYOMING LAND, LLC 
CONTURA COAL SALES, LLC 
POWER MOUNTAIN CONTURA, LLC 
CUMBERLAND CONTURA, LLC 
CONTURA PENNSYLVANIA LAND, LLC 
CONTURA FREEPORT, LLC 
CONTURA EUROPEAN MARKETING ; LLC 
PARAMONT CONTURA, LLC 
CONTURA PENNSYLVANIA TERMINAL, LLC 
CONTURA CAPP LAND, LLC 
CONTURA COAL WEST, LLC 
CONTURA TERMINAL, LLC

	By:
	/s/ C. Andrew Eidson

	 
	Name:   C. Andrew Eidson

	 
	Title:   Executive Vice President, Chief Financial Officer and Treasurer










159
    









	
		
	CITIBANK, N.A., 
as Administrative Agent, Lender, 
L/C Issuer and Swingline Lender

	By:
	/s/ Shane Arezara

	 
	Name:   Shane Arezara

	 
	Title:   Vice President & Director










160
    









	
		
	CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, 
as Lender and UC Issuer 
L/C Issuer and Swingline Lender

	By:
	/s/ Doreen Barr

	 
	Name:   Doreen Barr

	 
	Title:   Authorized Signatory








	
		
	By:
	/s/ Szymon Ordys

	 
	Name:   Szymon Ordys

	 
	Title:   Authorized Signatory










161
    









	
		
	BMO Harris Bank N.A., 
as Lender and UC Issuer

	By:
	/s/ Jason Hoefler

	 
	Name:   Jason Hoefler

	 
	Title:   Managing Director










162
    









	
		
	JEFFERIES FINANCE LLC, 
as a Lender

	By:
	/s/ John Koehler

	 
	Name:   John Koehler

	 
	Title:   Vice President










163
    









	
		
	UBS AG, Stamford Branch, 
as a Lender

	By:
	/s/ Craig Perason

	 
	Name:   Craig Perason

	 
	Title:   Associate Director








	
		
	By:
	/s/ Darlene Arias

	 
	Name:   Darlene Arias

	 
	Title:   Director










164
    









	
		
	Webster Business Credit Corporation, 
as a Lender

	By:
	/s/ Deborah Kos-Hannon

	 
	Name:   Deborah Kos-Hannon

	 
	Title:   SVP












165
    








Schedule 1.01(a) 
Guarantors
None.














Schedule 1.01(b) 
Excluded Wyoming Property
See attached.






    









Surface Land: Black Thunder Ranch
TOWNSHIP 46 NORTH, RANGE 69 WEST, 6TH P.M.
Section 22: E1⁄2E1⁄2 
Section 23: W1⁄2 
Section 24: S1⁄2, S1⁄2N1⁄2, NE1⁄4NW1⁄4, N1⁄2NE 1⁄4 
Section 26: W1⁄2SW 1⁄4 
Section 27: SE1⁄4, E1⁄2SW1⁄4 
Section 29: All 
Section 31: W1⁄2SW1⁄4, E1⁄2SW1⁄4, SE1⁄4 
Section 32: All 
Section 33: SW1⁄4 
Section 34: NE1⁄4NW1⁄4, W1⁄2NE 1⁄4, SE1⁄4NE1⁄4, E1⁄2SW1⁄4, SE1⁄4 
Section 35: All
TOWNSHIP 46 NORTH, RANGE 70 WEST, 6TH P.M.
Section 35: All
TOWNSHIP 45 NORTH, RANGE 69 WEST, 6TH P.M.
Section 1: N1⁄2N1⁄2, S1⁄2N1⁄2, S1⁄2 (all) 
Section 2: N1⁄2NW1⁄4, S1⁄2 NW1⁄4, S1⁄2 
Section 3: N1⁄2NE1⁄4, S1⁄2NE1⁄4, SW1⁄4, W1⁄2SE1⁄4 
Section 4: N1⁄2S1⁄2, S1⁄2SW1⁄4 
Section 5: N1⁄2NW1⁄4, S1⁄2NW1⁄4, S1⁄2 
Section 6: N1⁄2N1⁄2, SW1⁄4NW1⁄4, W1⁄2SW1⁄4, SE1⁄4NW1⁄4, E1⁄2SW1⁄4, S1⁄2NE1⁄4, SE1⁄4 (all) 
Section 8: All 
Section 9: NW1⁄4, NW1⁄4NE1⁄4, W1⁄2SW1⁄4 
Section 10: N1⁄2N1⁄2, SE1⁄4NE1⁄4 
Section 12: S1⁄2, NE1⁄4NE1⁄4 
Section 17: E1⁄2E1⁄2, E1⁄2W1⁄2, W1⁄2NW1⁄4, NW1⁄4SW1⁄4 
Section 18: W1⁄2W1⁄2, E1⁄2W1⁄2, SW1⁄4NE1⁄4, SW1⁄4SE1⁄4, E1⁄2E1⁄2 
Section 19: W1⁄2W1⁄2, E1⁄2W1⁄2, W1⁄2E1⁄2 
Section 30: W1⁄2W1⁄2, E1⁄2W1⁄2 
Section 31: SW1⁄4NW1⁄4, W1⁄2SW1⁄4
TOWNSHIP 45 NORTH, RANGE 70 WEST, 6TH P.M.
Section 1: N1⁄2N1⁄2, S1⁄2N1⁄2, S1⁄2 (all) 
Section 2: N1⁄2N1⁄2, S1⁄2NE1⁄4, SE1⁄4 
Section 11: E1⁄2 
Section 12: All 
Section 13: All 
Section 24: All 
Section 25: All 
Section 26: All 
Section 29: S1⁄2SW1⁄4 












Section 31: SE1⁄4NE1⁄4, E1⁄2SE1⁄4 
Section 32: W1⁄2W1⁄2, NE1⁄4NW1⁄4 
Section 34: E1⁄2NW1⁄4, NE1⁄4SW1⁄4, E1⁄2 
Section 35: All
TOWNSHIP 44 NORTH, RANGE 69 WEST, 6TH P.M.
Section 7: SW1⁄4SW1⁄4, E1⁄2SW1⁄4, S1⁄2NE1⁄4, SE1⁄4 
Section 18: E1⁄2, E1⁄2NW1⁄4, PARTIAL SW1⁄4, SW1⁄4NW1⁄4, NW1⁄4NW1⁄4 
Section 19: SW1⁄4, E1⁄2NE1⁄4NW1⁄4, N1⁄2NE1⁄4, N1⁄2SE1⁄4, SW1⁄4SE1⁄4 
Section 20: S1⁄2N1⁄2, SW1⁄4 
Section 21: SE1⁄4SW1⁄4 
Section 28: NW1⁄4NW1⁄4 
Section 29: N1⁄2NE1⁄4 
Section 30: W1⁄2W1⁄2, E1⁄2W1⁄2 
Section 31: W1⁄2W1⁄2, E1⁄2W1⁄2, W1⁄2SE1⁄4
TOWNSHIP 44 NORTH, RANGE 70 WEST, 6TH P.M.
Section 1: NE1⁄4NE1⁄4, N1⁄2NW1⁄4, S1⁄2NE1⁄4, W1⁄2SE1⁄4, NW1⁄4SE1⁄4 
Section 2: N1⁄2N1⁄2, SW1⁄4NE1⁄4, S1⁄2NW1⁄4, SW1⁄4, W1⁄2SE1⁄4 
Section 3: NE1⁄4NE1⁄4, SE1⁄4NE1⁄4, SE1⁄4SE1⁄4 
Section 4: W1⁄2SE1⁄4, W1⁄2SW1⁄4, SE1⁄4SW1⁄4, SW1⁄4NW1⁄4, 
Section 5: N1⁄2N1⁄2, S1⁄2N1⁄2, S1⁄2 (all) 
Section 6: N1⁄2NE1⁄4, NE1⁄4NW1⁄4, S1⁄2NE1⁄4, SE1⁄4, E1⁄2SW1⁄4, SE1⁄4NW1⁄4 
Section 7: All 
Section 8: All 
Section 9: W1⁄2, W1⁄2E1⁄2, SE1⁄4NE1⁄4, E1⁄2SE1⁄4 
Section 10: W1⁄2SW1⁄4, E1⁄2W1⁄2, E1⁄2 
Section 11:W1⁄2, W1⁄2E1⁄2, SE1⁄4NE1⁄4, E1⁄2SE1⁄4 
Section 12:S1⁄2N1⁄2, NE1⁄4NE1⁄4, S1⁄2 
Section 13: NW1⁄4, W1⁄2NE1⁄4, SW1⁄4SW1⁄4, N1⁄2SE1⁄4, 
PARTIAL E1⁄2NE1⁄4, NW1⁄4SW1⁄4, E1⁄2SW1⁄4, S1⁄2SE1⁄4 
Section 14: W1⁄2, W1⁄2E1⁄2, E1⁄2NE1⁄4, SE1⁄4SE1⁄4, 
PARTIAL NE1⁄4SE1⁄4 
Section 15: All 
Section 17: All 
Section 18: W1⁄2W1⁄2, E1⁄2W1⁄2 
Section 21: All 
Section 22: E1⁄2W1⁄2, NW1⁄4NW1⁄4, SW1⁄4SW1⁄4, E1⁄2 
Section 23: All 
Section 24: S1⁄2N1⁄2, N1⁄2S1⁄2, S1⁄2SW1⁄4, SE1⁄4SE1⁄4, 
PARTIAL N1⁄2NE1⁄4 
Section 25: E1⁄2E1⁄2
TOWNSHIP 43 NORTH, RANGE 69 WEST, 6TH P.M.
Section 5: SW1⁄4NW1⁄4, SW1⁄4 
Section 6: N1⁄2N1⁄2, SW1⁄4NW1⁄4, NW1⁄4SW1⁄4, SE1⁄4NW1⁄4, E1⁄2SW1⁄4, S1⁄2NE1⁄4, SE1⁄4 












Section 7: NE1⁄4 
Section 8: N1⁄2NW1⁄4, SW1⁄4NW1⁄4
TOWNSHIP 43 NORTH, RANGE 70 WEST, 6TH P.M.
Section 1: NE1⁄4NE1⁄4
TOWNSHIP 46 NORTH, RANGE 68 WEST, 6TH P.M. (Weston County)
Section 31: W1⁄2W1⁄2, E1⁄2W1⁄2
Together with all of Grantors’ interest in the minerals thereunder, all improvements situated thereon, and all water, water rights, ditch and ditch rights, and rights pertaining thereto, subject to all highways, right of ways, easements, leases, covenants, conditions, and prior reservations, including reservation of minerals, and all oil and gas leases now of record.
ALL EQUIPMENT AND OTHER PERSONAL PROPERTY RELATED TO, OR SITUATED ON, THE REAL PROPERTY DESCRIBED ABOVE, WHICH IS PLEDGED TO THE STATE OF WYOMING (OR ANY GOVERNMENTAL AGENCY THEREOF).















Mineral Acres: Black Thunder Ranch
TOWNSHIP 42 NORTH, RANGE 67 WEST, 6TH P.M.  (Weston County)
Section 2: N1⁄2NW1⁄4 
Section 5: N1⁄2NE1⁄4, NW 1⁄4 NW 1⁄4, SW1⁄4NE1⁄4, S1⁄2NW1⁄4 
Section 6: N1⁄2NW1⁄4, SE1⁄4NE1⁄4, E 1⁄2 NW 1⁄4 
Section 17: N1⁄2 
Section 18: W1⁄2
TOWNSHIP 42 NORTH, RANGE 68 WEST, 6TH P.M.  (Weston County)
Section 2: N1⁄2NW1⁄4, NW1⁄4NE1⁄4 
Section 3: N1⁄2N1⁄2
TOWNSHIP 43 NORTH, RANGE 67 WEST, 6TH P.M.  (Weston County)
Section 18: NW1⁄4NW1⁄4, SW1⁄4SE1⁄4, SE1⁄4SW1⁄4 
Section 19: E1⁄2E1⁄2, NW1⁄4NE1⁄4 
Section 34: N1⁄2NW1⁄4, W1⁄2NE1⁄4, SE1⁄4SE1⁄4 Section 35: SW1⁄4SW1⁄4
TOWNSHIP 43 NORTH, RANGE 68 WEST, 6TH P.M.  (Weston County)
Section 2: SW1⁄4, SW1⁄4SE1⁄4 
Section 3: SW1⁄4NW1⁄4 
Section 4: N1⁄2NE1⁄4, SE1⁄4NE1⁄4, S1⁄2SE1⁄4 
Section 5: NE1⁄4, SE1⁄4 
Section 6: NE1⁄4, SE1⁄4 
Section 8: W1⁄2 
Section 9: NE1⁄4, N1⁄2SE1⁄4 
Section 11: S1⁄2NW1⁄4, NW1⁄4NW1⁄4, E1⁄2SE1⁄4 
Section 31: W1⁄2NE1⁄4, E 1⁄2 NW 1⁄4, SE1⁄4NW1⁄4 
Section 33: NE1⁄4, NE1⁄4SE1⁄4 
Section 34: NE1⁄4, W1⁄2NW1⁄4, N1⁄2S1⁄2, SW1⁄4SW1⁄4 
Section 35: E1⁄2
TOWNSHIP 43 NORTH, RANGE 69 WEST, 6TH P.M.  (Campbell County)
Section 6: NW1⁄4SW1⁄4 
Section 20: SW1⁄4NE1⁄4 
Section 27: NE1⁄4, NE1⁄4NW1⁄4, N1⁄2SE1⁄4, SE1⁄4SE1⁄4
TOWNSHIP 43 NORTH, RANGE 70 WEST, 6TH P.M.  (Campbell County)
Section 23: NW1⁄4SE1⁄4
TOWNSHIP 44 NORTH, RANGE 68 WEST, 6TH P.M.  (Weston County)











Section 3: NW1⁄4, N1⁄2SW1⁄4, SE1⁄4SW1⁄4 
Section 4: NE1⁄4SE1⁄4 
Section 5: NW1⁄4NW1⁄4, SW1⁄4NW1⁄4 
Section 6: NE1⁄4NE1⁄4, SE1⁄4NE1⁄4, N1⁄2SE1⁄4 
Section 7: SE1⁄4 
Section 18: W1⁄2 
Section 19: E1⁄2SW1⁄4, W1⁄2SE1⁄4, SE1⁄4SE1⁄4 
Section 29: W1⁄2E1⁄2, N1⁄2NW1⁄4, NE1⁄4SW1⁄4, S1⁄2SW1⁄4 
Section 30: W1⁄2E1⁄2, SE1⁄4NE1⁄4, E1⁄2NW1⁄4, NE1⁄4SW1⁄4, E1⁄2SE1⁄4 
Section 31: S1⁄2 
Section 33: SW1⁄4NE1⁄4, S1⁄2NW1⁄4, N1⁄2SW1⁄4, W1⁄2SE1⁄4
TOWNSHIP 42 NORTH, RANGE 70 WEST, 6TH P.M.  (Campbell County)
Section 2: W1⁄2
TOWNSHIP 44 NORTH, RANGE 69 WEST, 6TH P.M.  (Campbell County)
Section 2: W1⁄2W1⁄2, SE1⁄4SW1⁄4, SW1⁄4SE1⁄4 
Section 7: SW1⁄4SW1⁄4 
Section 11: N1⁄2NE1⁄4 
Section 12: S1⁄2NW1⁄4, N1⁄2SW1⁄4, W1⁄2SE1⁄4, SE1⁄4SE1⁄4 
Section 13: N1⁄2S1⁄2, S1⁄2NE1⁄4, NE1⁄4NE1⁄4 
Section 14: E1⁄2SE1⁄4 
Section 18: NW1⁄4, SW1⁄4SW1⁄4, SW1⁄4SE1⁄4 
Section 19: N1⁄2N1⁄2 
Section 21: NE1⁄4, NE1⁄4NW1⁄4, NE1⁄4SW1⁄4, N1⁄2SE1⁄4 
Section 24: W1⁄2NE1⁄4, NW1⁄4, NE1⁄4SW1⁄4, NW1⁄4SE1⁄4 
Section 25: SE1⁄4NW1⁄4, SW1⁄4, W1⁄2SE1⁄4, SE1⁄4SE 1⁄4 
Section 26: E1⁄2NW1⁄4, N1⁄2SW1⁄4, S1⁄2SE1⁄4, NW1⁄4SE1⁄4 
Section 27: N1⁄2SE1⁄4, NE1⁄4SW1⁄4 
Section 31: NE1⁄4SE1⁄4 Section 35: NE1⁄4NE 1⁄4
TOWNSHIP 44 NORTH, RANGE 70 WEST, 6TH P.M.  (Campbell County)
Section 2: N1⁄2SW1⁄4, SW1⁄4SW1⁄4, W1⁄2SE1⁄4 
Section 4: NE1⁄4NE1⁄4, NW1⁄4NW1⁄4 
Section 7: S1⁄2 
Section 8: W1⁄2 
Section 9: SE1⁄4 
Section 10: S1⁄2S1⁄2, NW1⁄4SE1⁄4 
Section 11: N1⁄2NW1⁄4, NW1⁄4NE1⁄4 
Section 12: W1⁄2SE1⁄4, SW1⁄4NE1⁄4, SE1⁄4SE1⁄4 
Section 13: S1⁄2S1⁄2, NW1⁄4SW1⁄4 
Section 14: SW1⁄4NE1⁄4, NW1⁄4, SW1⁄4SW1⁄4, N1⁄2SE1⁄4 
Section 15: NE1⁄4, N1⁄2SE1⁄4, SE1⁄4SE1⁄4 
Section 21: W1⁄2NE1⁄4, W1⁄2 
Section 22: SW1⁄4SW1⁄4 
Section 23: SE1⁄4NW1⁄4 












Section 24: N1⁄2NE1⁄4, N1⁄2NW1⁄4 
Section 27: NW1⁄4NW1⁄4 
Section 34: SW1⁄4NW1⁄4, N1⁄2SW1⁄4
TOWNSHIP 45 NORTH, RANGE 68 WEST, 6TH P.M.  (Weston County)
Section 2: S1⁄2N1⁄2 
Section 6: E1⁄2SW1⁄4, W1⁄2SE1⁄4, NE1⁄4NW1⁄4 
Section 7: W1⁄2NE1⁄4, E1⁄2NW1⁄4 
Section 10: N1⁄2SE1⁄4 
Section 11: N1⁄2SW1⁄4 
Section 19: E1⁄2NE1⁄4, NE1⁄4SE1⁄4 
Section 20: NW1⁄4SW1⁄4 
Section 29: W1⁄2SW1⁄4 
Section 30: W1⁄2W1⁄2 
Section 32: W1⁄2W1⁄2, E1⁄2SW1⁄4, N1⁄2SE1⁄4
TOWNSHIP 45 NORTH, RANGE 69 WEST, 6TH P.M.  (Campbell County)
Section 2: N1⁄2NW1⁄4, E1⁄2SW1⁄4, SE1⁄4 
Section 3: NE1⁄4NE1⁄4, SE1⁄4NE1⁄4 
Section 5: SE1⁄4SE1⁄4 
Section 8: S1⁄2NE1⁄4, NE1⁄4NE1⁄4 
Section 9: N1⁄2 
Section 10: N1⁄2N1⁄2, SE1⁄4NE1⁄4 
Section 11: N1⁄2NE1⁄4 
Section 12: SW1⁄4SE1⁄4 
Section 13: NE1⁄4NE1⁄4, W1⁄2E1⁄2, E1⁄2SE1⁄4 
Section 15: SW1⁄4 
Section 18: SW 1⁄4 NW 1⁄4, SW 1⁄4 
Section 19: W1⁄2 
Section 21: E1⁄2, E1⁄2W1⁄2 
Section 22: N1⁄2, N1⁄2SW1⁄4 
Section 23: SE1⁄4 
Section 24: N1⁄2NE1⁄4, W1⁄2SW1⁄4 
Section 25: E1⁄2E1⁄2, N1⁄2NW1⁄4, SW1⁄4 
Section 26: N1⁄2NE1⁄4, SE1⁄4 
Section 27: S1⁄2SE1⁄4, NW1⁄4SE1⁄4 
Section 28: NE1⁄4NE1⁄4 
Section 34: E1⁄2NE1⁄4, NE1⁄4SE1⁄4 
Section 35: W1⁄2SW1⁄4
TOWNSHIP 45 NORTH, RANGE 70 WEST, 6TH P.M.  (Campbell County)
Section 12: E1⁄2 
Section 13: E1⁄2NE1⁄4, NE1⁄4SE1⁄4 
Section 24: S1⁄2 
Section 25: All 












Section 26: N1⁄2, N1⁄2SW1⁄4, E1⁄2SE1⁄4 
Section 33: SW1⁄4SW1⁄4
TOWNSHIP 46 NORTH, RANGE 67 WEST, 6TH P.M.  (Weston County)
Section 19: W1⁄2NW1⁄4, SW1⁄4SW1⁄4, SE1⁄4NW1⁄4, E1⁄2SW1⁄4, W1⁄2SE1⁄4 
Section 30: NW1⁄4NW1⁄4, W1⁄2NE1⁄4, E1⁄2NW1⁄4
TOWNSHIP 46 NORTH, RANGE 68 WEST, 6TH P.M.  (Weston County)
Section 10: S1⁄2SW1⁄4, SW1⁄4SE1⁄4 
Section 11: NW1⁄4 
Section 13: SE1⁄4SE1⁄4, SW1⁄4SW1⁄4 
Section 14: SE1⁄4 
Section 15: SE1⁄4NE1⁄4, W1⁄2NE1⁄4, W1⁄2 
Section 17: SW1⁄4 
Section 21: E1⁄2NE1⁄4 
Section 22: W1⁄2NW1⁄4 
Section 23: E1⁄2E1⁄2 
Section 24: E1⁄2NE1⁄4, SW1⁄4NE1⁄4, E1⁄2W1⁄2, W1⁄2SE1⁄4, SW1⁄4SW1⁄4 
Section 25: W1⁄2NE1⁄4, NW1⁄4, W1⁄2SW1⁄4 
Section 26: E1⁄2NE1⁄4
TOWNSHIP 46 NORTH, RANGE 69 WEST, 6TH P.M.  (Campbell County)
Section 29: W1⁄2 
Section 31: W1⁄2
TOWNSHIP 49 NORTH, RANGE 68 WEST, 6TH P.M.  (Crook County)
Section 2: SW1⁄4NW1⁄4, SW1⁄4, W1⁄2SE1⁄4 
Section 3: S1⁄2NE1⁄4, E1⁄2SE1⁄4 
Section 9: S1⁄2SE1⁄4 
Section 10: E1⁄2NE1⁄4, S1⁄2SW1⁄4, SW1⁄4SE1⁄4 
Section 11: W1⁄2W1⁄2 
Section 15: N1⁄2NE1⁄4, SW1⁄4NE1⁄4, NE1⁄4NW1⁄4
TOWNSHIP 42 NORTH, RANGE 67 WEST, 6TH P.M.  (Weston County)
Section 4: W1⁄2SW1⁄4, SW1⁄4NW1⁄4 
Section 9: NW1⁄4NW1⁄4
TOWNSHIP 42 NORTH, RANGE 68 WEST, 6TH P.M.  (Weston County)
Section 5: N1⁄2 
Section 6: S1⁄2
TOWNSHIP 43 NORTH, RANGE 68 WEST, 6TH P.M.  (Weston County)











Section 24: W1⁄2 
Section 26: S1⁄2
TOWNSHIP 43 NORTH, RANGE 69 WEST, 6TH P.M.  (Campbell County)
Section 2: SE1⁄4NW1⁄4, N1⁄2SW1⁄4, SW1⁄4SW1⁄4 
Section 3: S1⁄2SE1⁄4, SE1⁄4SW1⁄4 
Section 7: SE1⁄4 
Section 8: N1⁄2NE1⁄4, SW1⁄4 
Section 9: N1⁄2N1⁄2, S1⁄2NE1⁄4 
Section 10: NE1⁄4NW1⁄4
TOWNSHIP 44 NORTH, RANGE 68 WEST, 6TH P.M.  (Weston County)
Section 5: E1⁄2 
Section 8: E1⁄2 
Section 19: N1⁄2 
Section 23: SE1⁄4 
Section 26: NE1⁄4 
Section 34: S1⁄2NE1⁄4, NE1⁄4NE1⁄4, NE1⁄4SE1⁄4 
Section 35: W1⁄2W1⁄2
TOWNSHIP 44 NORTH, RANGE 70 WEST, 6TH P.M.  (Campbell County)
Section 4: SW1⁄4NW1⁄4 
Section 5: N1⁄2N1⁄2, SE1⁄4NE1⁄4, SW1⁄4NW1⁄4, NE1⁄4SW1⁄4, N1⁄2SE1⁄4 
Section 6: NE1⁄4NE1⁄4, SE1⁄4NE 1⁄4 
Section 7: N1⁄2 
Section 12: SW1⁄4NE1⁄4 
Section 15: SW1⁄4SE1⁄4 
Section 17: W1⁄2 
Section 22: N1⁄2N1⁄2, SW1⁄4NE1⁄4, SE1⁄4NW1⁄4, NE1⁄4SW1⁄4
TOWNSHIP 45 NORTH, RANGE 68 WEST, 6TH P.M.  (Weston County)
Section 7: SE1⁄4SE1⁄4 
Section 17: NW1⁄4, N1⁄2SW1⁄4 
Section 18: SW1⁄4SW1⁄4, NE1⁄4NE1⁄4 
Section 19: NW1⁄4NW1⁄4 
Section 34: W1⁄2E1⁄2
TOWNSHIP 45 NORTH, RANGE 70 WEST, 6TH P.M.  (Campbell County)
Section 1: E1⁄2, N1⁄2SW1⁄4 
Section 2: SW1⁄4NE1⁄4 
Section 31: E1⁄2SE1⁄4 
Section 32: W1⁄2SW1⁄4
TOWNSHIP 42 NORTH, RANGE 68 WEST, 6TH P.M.  (Weston County)











Section 4: NE1⁄4NW1⁄4, N1⁄2NE1⁄4, SE1⁄4NE1⁄4
TOWNSHIP 43 NORTH, RANGE 68 WEST, 6TH P.M.  (Weston County)
Section 31: NE1⁄4SE1⁄4 Section 32: N1⁄2S1⁄2, S1⁄2SE1⁄4 
Section 33: SW1⁄4SW1⁄4
TOWNSHIP 45 NORTH, RANGE 68 WEST, 6TH P.M.  (Weston County)
Section 14: S1⁄2 
Section 23: N1⁄2 
Section 29: SW1⁄4NE1⁄4, E1⁄2SW1⁄4, W1⁄2SE1⁄4, SE1⁄4SE1⁄4 
Section 32: NE1⁄4, E1⁄2NW1⁄4
Belle Ayr Ranch
Property lying West of Hwy 59 is more particularly described as follows:
Beginning at the SW corner of Section 7, Township 48 North, Range 71 West, 6th P.M., thence S
00°15'37" E a distance of 1323.29'; thence S
00°15'38" E a distance of 1249.45'; thence S
86°05'53" W a distance of 1378.42'; thence S
12°06'30" W a distance of 1317.09'; thence N
89°55'41" W a distance of 1090.31'; thence S
00°37'29" W a distance of 1278.26'; thence S
89°54'24" W a distance of 1325.74'; thence S
00°22'06" E a distance of 1340.54'; thence S
89°52'55" E a distance of 1320.80'; thence S
00°33'44" E a distance of 2271.11'; thence S
12°46'37" W a distance of 3198.74'; thence S
89°59'38" W a distance of 616.48'; thence S
00°35'18" W a distance of 1319.09'; thence N
89°35'11" E a distance of 382.67'; thence S
08°58'18" W a distance of 2704.89'; thence N
89°43'46" W a distance of 1299.55'; thence S
00°44'29" W a distance of 1288.35'; thence S
00°34'53" W a distance of 3936.69'; thence S
00°09'07" W a distance of 4400.90'; thence S
00°22'09" W a distance of 2237.02'; thence S
89°14'28" E a distance of 1315.92'; thence S
01°21'42" E a distance of 1329.56'; thence S
89°48'40" E a distance of 1317.53'; thence S
00°32'26" W a distance of 1343.72'; thence N
89°17'43" E a distance of 2625.65'; thence N
01°32'17" E a distance of 1321.09'; thence N
89°51'22" E a distance of 2626.49'; thence S
00°06'10" E a distance of 1324.19'; thence S
00°06'09" E a distance of 1325.01'; thence S
89°34'49" W a distance of 1382.17'; thence S











89°35'05" W a distance of 1257.48'; thence N
85°44'11" W a distance of 991.87'; thence N
89°53'45" W a distance of 340.30'; thence N
89°53'44" W a distance of 415.96'; thence N
89°52'19" W a distance of 383.48'; thence N
89°51'38" W a distance of 390.75'; thence N
89°51'34" W a distance of 138.53'; thence N
89°51'32" W a distance of 341.39'; thence N
89°56'06" W a distance of 317.30'; thence N
89°56'56" W a distance of 376.51'; thence S
84°17'29" W a distance of 44.63'; thence S
87°02'57" W a distance of 51.34'; thence S
89°30'16" W a distance of 34.11'; thence N
89°16'44" W a distance of 8.13'; thence N
88°27'53" W a distance of 23.82'; thence N
86°16'52" W a distance of 50.87'; thence N
83°18'22" W a distance of 50.87'; thence N
80°57'32" W a distance of 29.37'; thence N
79°57'24" W a distance of 9.90'; thence N
78°11'47" W a distance of 51.51'; thence N
75°14'45" W a distance of 51.51'; thence N
72°17'42" W a distance of 51.51'; thence N
69°20'40" W a distance of 51.51'; thence N
66°23'36" W a distance of 51.51'; thence N
63°26'33" W a distance of 51.51'; thence N
60°29'31" W a distance of 51.51'; thence N
57°32'27" W a distance of 51.51'; thence N
55°57'46" W a distance of 3.53'; thence N
59°18'57" W a distance of 231.25'; thence N
56°53'17" W a distance of 70.35'; thence N
58°43'00" W a distance of 78.19'; thence N
60°38'30" W a distance of 78.19'; thence N
62°34'01" W a distance of 78.19'; thence N
64°29'31" W a distance of 78.19'; thence N
66°25'01" W a distance of 78.19'; thence N
68°05'34" W a distance of 57.92'; thence N
82°42'06" W a distance of 125.97'; thence N
89°49'59" W a distance of 126.58'; thence N
89°50'30" W a distance of 26.66'; thence N
89°49'55" W a distance of 25.13'; thence N
89°49'52" W a distance of 100.00'; thence S
00°10'07" W a distance of 614.27'; thence S
00°08'24" W a distance of 1.61'; thence S
00°10'06" W a distance of 493.38'; thence S
00°02'54" E a distance of 834.52'; thence S
00°01'36" E a distance of 1329.40'; thence N
89°49'26" W a distance of 1204.71'; thence N
89°50'13" W a distance of 1335.06'; thence N
89°50'12" W a distance of 1345.38'; thence N











89°50'14" W a distance of 1345.38'; thence N
89°59'41" W a distance of 1312.35'; thence N
89°59'39" W a distance of 1312.35'; thence N
89°59'40" W a distance of 1320.87'; thence N
89°59'41" W a distance of 1320.86'; thence N
00°21'26" E a distance of 1329.53'; thence N
00°15'12" E a distance of 1330.11'; thence N
00°02'45" W a distance of 1340.65'; thence N
00°00'52" W a distance of 1340.64'; thence N
89°58'10" E a distance of 1319.38'; thence N
00°17'41" E a distance of 1330.51'; thence S
89°50'16" W a distance of 1318.59'; thence N
00°19'55" E a distance of 72.12'; thence N
00°19'47" E a distance of 1254.36'; thence N
89°43'12" W a distance of 1332.35'; thence N
89°45'34" W a distance of 1331.61'; thence N
89°42'45" W a distance of 1332.34'; thence N
89°45'08" W a distance of 1332.35'; thence N
89°37'07" W a distance of 1336.73'; thence S
00°05'49" W a distance of 1342.67'; thence N
89°31'41" W a distance of 1334.64'; thence N
00°01'28" W a distance of 1339.65'; thence S
89°59'54" W a distance of 1339.66'; thence N
89°59'54" W a distance of 1338.93'; thence N
89°44'04" W a distance of 1499.54'; thence N
89°41'31" W a distance of 1498.80'; thence S
87°36'16" W a distance of 1500.43'; thence S
00°24'57" W a distance of 1345.84'; thence S
00°27'17" W a distance of 1347.47'; thence S
88°55'28" W a distance of 1397.71'; thence N
00°31'45" E a distance of 1331.84'; thence N
00°31'44" E a distance of 1331.84'; thence N
00°26'10" E a distance of 1330.85'; thence N
00°26'10" E a distance of 1330.84'; thence N
00°30'27" E a distance of 1328.84'; thence N
00°30'28" E a distance of 1328.85'; thence N
00°33'39" E a distance of 1322.24'; thence N
00°33'40" E a distance of 1322.24'; thence N
00°41'40" E a distance of 1326.87'; thence N
00°41'40" E a distance of 1326.86'; thence N
88°48'35" E a distance of 1536.01'; thence N
88°48'21" E a distance of 1696.34'; thence S
00°30'11" W a distance of 1358.47'; thence S
89°31'05" E a distance of 1322.27'; thence S
89°31'05" E a distance of 1322.27'; thence N
89°44'39" E a distance of 1333.58'; thence N
89°44'37" E a distance of 1333.58'; thence N
89°58'53" E a distance of 1333.35'; thence N
89°58'54" E a distance of 1333.34'; thence N











00°28'13" E a distance of 1317.32'; thence N
00°16'20" E a distance of 1325.86'; thence N
89°46'22" W a distance of 1331.68'; thence N
89°46'20" W a distance of 1331.67'; thence S
89°59'22" W a distance of 1332.19'; thence S
89°59'22" W a distance of 1332.20'; thence N
00°13'09" E a distance of 1333.05'; thence N
00°13'08" E a distance of 1333.07'; thence N
00°13'10" E a distance of 1333.07'; thence N
00°39'51" E a distance of 1333.10'; thence N
00°39'51" E a distance of 1333.11'; thence S
89°47'15" E a distance of 1332.18'; thence N
00°38'14" E a distance of 1334.65'; thence N
00°38'13" E a distance of 1334.60'; thence S
89°55'18" E a distance of 1330.94'; thence S
89°55'31" E a distance of 1330.93'; thence S
89°55'44" E a distance of 1330.94'; thence N
88°42'35" E a distance of 1322.30'; thence N
88°42'22" E a distance of 1322.30'; thence N
88°42'19" E a distance of 1322.27'; thence N
88°42'05" E a distance of 1322.27'; thence S
86°47'01" E a distance of 1328.52'; thence N
00°55'33" E a distance of 1339.11'; thence N
88°04'09" W a distance of 1328.44'; thence N
00°53'31" E a distance of 1309.32'; thence N
00°53'54" E a distance of 1309.31'; thence S
88°55'24" E a distance of 1329.70'; thence S
88°55'25" E a distance of 1329.70'; thence N
89°57'44" E a distance of 1315.42'; thence N
89°57'45" E a distance of 1315.42'; thence S
00°43'50" W a distance of 4008.96'; thence S
89°17'41" E a distance of 1330.78'; thence N
00°39'28" E a distance of 4006.37'; thence N
89°10'59" W a distance of 1325.68'; thence N
01°18'52" E a distance of 1320.98'; thence S
89°16'47" W a distance of 1319.89'; thence N
00°10'17" W a distance of 1334.39'; thence S
89°51'35" W a distance of 1322.28'; thence N
00°16'33" W a distance of 1347.69'; thence N
00°16'31" W a distance of 1321.89'; thence S
89°32'46" E a distance of 1327.24'; thence N
00°10'13" W a distance of 1321.42'; thence S
89°31'48" E a distance of 1329.67'; thence S
89°38'54" E a distance of 1317.54'; thence S
89°39'06" E a distance of 1317.54'; thence S
89°52'19" E a distance of 1317.54'; thence S
89°52'33" E a distance of 1317.54'; thence S
89°48'02" E a distance of 1326.42'; thence S
89°48'16" E a distance of 1326.43'; thence S











88°53'26" E a distance of 1326.76'; thence S
00°12'36" E a distance of 1330.68'; thence S
00°12'36" E a distance of 1330.71'; thence S
00°12'37" E a distance of 1325.48'; thence S
00°12'37" E a distance of 1325.53'; thence S
89°41'43" E a distance of 244.55'; thence S
89°43'11" E a distance of 100.47'; thence S
89°43'15" E a distance of 50.40'; thence N
07°58'59" E a distance of 588.53'; thence N
07°59'02" E a distance of 748.08'; thence S
89°37'49" E a distance of 548.55'; thence S
00°14'55" E a distance of 740.83'; thence S
00°15'00" E a distance of 582.95'; thence S
89°41'50" E a distance of 196.09'; 
which is the point at the beginning, having an area of 17114.300 acres more or less.
Bone Pile Hay Field
Starting at the SW corner of Section 9, Township 48 North, Range 72 West, 6th P.M., thence N
89°09'27" W a distance of 2655.00'; this being the point of the beginning; thence S
00°13'37" W a distance of 1335.23'; thence S
00°13'38" W a distance of 1335.22'; thence S
00°13'36" W a distance of 1327.91'; thence N
89°48'52" W a distance of 1331.41'; thence N
00°12'23" E a distance of 1330.34'; thence N
89°42'34" W a distance of 1331.89'; thence N
00°10'31" E a distance of 1332.80'; thence N
89°56'38" W a distance of 1330.38'; thence N
00°10'30" E a distance of 1352.10'; thence N
00°08'14" E a distance of 1306.04'; thence N
89°58'54" W a distance of 1329.15'; thence N
00°11'30" E a distance of 1285.77'; thence N
89°08'45" E a distance of 1328.12'; thence N
89°08'46" E a distance of 1328.11'; thence S
89°42'07" E a distance of 1335.33'; thence S
00°07'57" W a distance of 1324.91'; thence S
89°45'28" E a distance of 1334.21'; thence S
00°10'50" W a distance of 1323.60'; which is the point at the beginning, having an area of 486.400 acres more or less.
Together with all of Grantors’ interest in the minerals thereunder, all improvements situated thereon, and all water, water rights, ditch and ditch rights, and rights pertaining thereto, subject to all highways, right of ways, easements, leases, covenants, conditions, and prior reservations, including reservation of minerals, and all oil and gas leases now of record.











ALL EQUIPMENT AND OTHER PERSONAL PROPERTY RELATED TO, OR SITUATED ON, THE REAL PROPERTY DESCRIBED ABOVE, WHICH IS PLEDGED TO THE STATE OF WYOMING (OR ANY GOVERNMENTAL AGENCY THEREOF).













Crook County, Wyoming
Surface Land:
TOWNSHIP 50 NORTH, RANGE 66 WEST 6TH P.M.
Section 4: NW1⁄4NW1⁄4 (Bucks SUBD, BLK 2, Lots 25 and 26)
Together with all of Grantors’ interest in the minerals thereunder, all improvements situated thereon, and all water, water rights, ditch and ditch rights, and rights pertaining thereto, subject to all highways, right of ways, easements, leases, covenants, conditions, and prior reservations, including reservation of minerals, and all oil and gas leases now of record.
ALL EQUIPMENT AND OTHER PERSONAL PROPERTY RELATED TO, OR SITUATED ON, THE REAL PROPERTY DESCRIBED ABOVE, WHICH IS PLEDGED TO THE STATE OF WYOMING (OR ANY GOVERNMENTAL AGENCY THEREOF).
















Schedule 1.01(d) 
Reserve Areas
See attached.






    








	
		
	Contura Owned Surface Tracts used for Proposed 
Freeport Mine Surface Development

	Parcel ID
	Surface Owner

	15-01-105
	Contura PA Land, LLC

	15-01-107
	Contura PA Land, LLC

	15-01-108
	Contura PA Land, LLC

	15-01-120
	Contura PA Land, LLC

	15-01-121
	Contura PA Land, LLC

	15-01-124
	Contura PA Land, LLC

	15-01-125
	Contura PA Land, LLC

	15-01-128A
	Contura PA Land, LLC

	15-01-130A
	Contura PA Land, LLC

	15-01-131
	Contura PA Land, LLC

	15-01-135
	Contura PA Land, LLC

	15-01-135A
	Contura PA Land, LLC

	15-01-136
	Contura PA Land, LLC

	15-01-145
	Contura PA Land, LLC

	15-01-145A
	Contura PA Land, LLC

	15-01-146
	Contura PA Land, LLC

	15-01-147
	Contura PA Land, LLC

	15-01-148
	Contura PA Land, LLC

	15-01-150A
	Contura PA Land, LLC

	15-01-152
	Contura PA Land, LLC

	15-01-153
	Contura PA Land, LLC

	15-01-154
	Contura PA Land, LLC

	15-01-157
	Contura PA Land, LLC

	17-06-122
	Contura PA Land, LLC

	17-06-123
	Contura PA Land, LLC

	17-06-123A
	Contura PA Land, LLC

	17-06-125
	Contura PA Land, LLC

	17-06-126
	Contura PA Land, LLC

	17-06-131
	Contura PA Land, LLC

	17-06-141
	Contura PA Land, LLC

	17-06-142
	Contura PA Land, LLC

	17-08-400A
	Contura PA Land, LLC








    











	
	
	Contura Leased Surface 
Tracts used for Proposed 
Freeport Mine Surface 
Development

	Those leased tracts described in 
that Assignmnet of Leases and 
Other Agreements effective July 
26, 2016, by and between Alpha 
Natural Resources, Inc. and 
Contura Freeport, LLC of record 
in OR Book 492, page 3079, 
Greene County, Pennsylvania.








	
	
	Contura Owned Coal 
Tracts included in 
Proposed Freeport Mine

	That coal contained in the Deed 
of Conveyance date July 26, 2016 from Alpha Natural Resources, Inc. to Contura Pennsylvania Land, LLC of record in Book 492, page 2955, Greene County, Pennsylvania.

	 

	That coal contained in the Deed 
of Conveyance date July 26, 2016 from Alpha Natural Resources, Inc. to Contura Pennsylvania Land, LLC being Instrument No 201618557, Washington County, Pennsylvania.


































	
		
	Contura Owned Surface Tracts used for Proposed Sewickley Mine Surface Development

	Parcel ID
	Surface Owner

	03-04-115
	Contura PA Land, LLC

	03-04-115A
	Contura PA Land, LLC

	03-04-115B
	Contura PA Land, LLC

	03-04-116
	Contura PA Land, LLC

	03-04-117
	Contura PA Land, LLC

	03-04-117A
	Contura PA Land, LLC

	03-04-118
	Contura PA Land, LLC

	03-04-124
	Contura PA Land, LLC

	03-04-124A
	Contura PA Land, LLC

	03-04-125
	Contura PA Land, LLC

	03-04-125A
	Contura PA Land, LLC

	03-04-125B
	Contura PA Land, LLC

	03-05-100
	Contura PA Land, LLC

	03-05-101
	Contura PA Land, LLC

	03-05-102
	Contura PA Land, LLC

	03-05-103
	Contura PA Land, LLC

	03-05-104
	Contura PA Land, LLC

	03-05-105
	Contura PA Land, LLC

	03-05-106
	Contura PA Land, LLC

	03-05-107
	Contura PA Land, LLC

	03-05-110
	Contura PA Land, LLC

	03-05-111
	Contura PA Land, LLC

	03-05-111A
	Contura PA Land, LLC

	03-05-111C
	Contura PA Land, LLC

	03-05-114
	Contura PA Land, LLC

	03-05-202
	Contura PA Land, LLC

	03-05-300
	Contura PA Land, LLC

	03-05-301
	Contura PA Land, LLC

	03-05-302
	Contura PA Land, LLC

	03-05-303
	Contura PA Land, LLC

	03-05-304
	Contura PA Land, LLC

	03-05-305
	Contura PA Land, LLC

	03-05-306
	Contura PA Land, LLC

	03-05-307
	Contura PA Land, LLC

	03-05-308
	Contura PA Land, LLC

	03-05-309
	Contura PA Land, LLC

	13-01-126
	Contura PA Land, LLC



















	
	
	Contura Owned and Leased Coal for Proposed Sewickley Mine Development

	The Sewickley seam of coal conveyed by CNG Coal Company to Cyprus Consolidated Resources Corporation (name changed to Alpha Coal Resources, LLC) by that Indenture dated July 2, 1996 of record in Book 0158, Page 0259 in Greene County, Pennsylvania; and being a portion of the property conveyed from Alpha Natural Resources, Inc to Contura Coal Resources, LLC by that Deed dated July 22, 2016 of record in OR Book 492, Page 2885-2892 and being Instrument No 2016-00004552 in Greene County, Pennsylvania.

	 

	The portion of that Coal Lease Agreement from Talen Generation, LLC (formerly known as PPL Generation, LLC, parent of Realty Company of Pennsylvania, successor in interest to Greene Manor Coal Company), to Pennsylvania Land Holdings Company, dated December 4, 1980, as assigned from Alpha Natural Resources, Inc to Contura Pennsylvania Land, LLC, by t hat Assignment of Leases and Other Agreements dated July 22, 2016 of record in OR Book 492, pages 3036 -3052, Greene County, Pennsylvania.  (the "Greene Manor Lease") that leases the Sewlickley seam of coal.






















UNDEVELOPED RESERVES - VA AND WV
	
											
	DEEP MINES
	Location
	TRAX #
	Leased/Owned or 
other
	Surface/Coal
	Lessee/Grantee
	Lessor/Grantor
	Book/Page
	Date
	Tax Map/ 
Account #
	Description

	Stonecoal - Aily (Aily)
	Stonecoal Creek of Dumps Creek, Russell County, VA
	CCL-00023
	Leased
	Surface & Coal
	Contura CAPP Land, LLC
	ACIN LLC
	579/619
	04/01/2003
	N/A
	Coal Mining Lease for the right to mine coal on Lessor's property by surface or deep mining methods, located in the VA counties of Buchanan, Russell, Dickenson, Wise and Scott.

	 
	 
	 
	 
	 
	 
	 
	 
	 
	 
	 

	Cabin Ridge (Lower Banner)
	Dickenson County, VA
	CCL-00023
	Leased
	Surface & Coal
	Contura CAPP Land, LLC
	ACIN LLC
	385/650
	04/01/2003
	N/A
	Coal Mining Lease for the right to mine coal on Lessor's property by surfaceor deep mining methods, located in the VA counties of Buchanan, Russell, Dickenson, Wise and Scott.

	 
	 
	 
	 
	 
	 
	 
	 
	 
	 
	 

	Tom's Creek North (Lower Banner)
	Tom's Creek, Coeburn in Wise County, VA
	CCL-00023
	Leased
	Surface & Coal
	Contura CAPP Land, LLC
	ACIN LLC
	Inst # 200301638
	04/01/2003
	N/A
	Coal Mining Lease for the right to mine coal on Lessor's property by surfaceor deep mining methods, located in the VA counties of Buchanan, Russell, Dickenson, Wise and Scott.

	 
	 
	 
	 
	 
	 
	 
	 
	 
	 
	 

	Tom's Creek South (Lower Banner)
	Tom's Creek, Coeburn in Wise County, VA
	CCL-00023
	Leased
	Surface & Coal
	Contura CAPP Land, LLC
	ACIN LLC
	Inst # 200301638
	04/01/2003
	N/A
	Coal Mining Lease for the right to mine coal on Lessor's property by surfaceor deep mining methods, located in the VA counties of Buchanan, Russell, Dickenson, Wise and Scott.

	 
	 
	 
	 
	 
	 
	 
	 
	 
	 
	 

	DM #42 (Jawbone)
	Middle Fork of Open Fork, near Nora, Dickenson County, VA
	CCL-00023
	Leased
	Surface & Coal
	Contura CAPP Land, LLC
	ACIN LLC
	385/650
	04/01/2003
	N/A
	Coal Mining Lease for the right to mine coal on Lessor's property by surfaceor deep mining methods, located in the VA counties of Buchanan, Russell, Dickenson, Wise and Scott.

	PAR-00396
	Leased
	Surface
	Paramont Contura, LLC
	Dickenson County School Board
	526/684
	5/15/2015
	N/A
	Surface Rights Agreement for ground-water monitoring well at Ervinton HS.

	PAR-00397
	Owned
	Surface
	Paramont Contura, LLC
	Dewey French
	529/110
	09/15/2015
	4630
	Deed for 0.21 ac. tract of land situated in Dickenson County, VA, together with all improvements thereon and all appurtenances thereto belonging.

	PAR-00401
	Owned
	Surface
	Paramont Contura, LLC
	Glenn E. Teasley, et al
	529/499
	10/06/2015
	4021
	Deed for 50 ac. tract of situated in Dickenson County, VA, together with all improvements thereon and all appurtenances thereto belonging.

	NONE
	Owned
	Surface
	Paramont Contura, LLC
	Scott Mullins and Suzan Moore
	Unrecorded
	N/A
	5243
	Unrecorded deed for 3.65 ac. tract of situated in Dickenson County, VA,together with all improvements thereon and all appurtenances thereto belonging.

	PAR-00442
	Option to Purchase
	Surface
	Paramont Contura, LLC
	Heartwood Forestland Fund IV Limited Partnership
	160001429
	10/10/2016
	 
	Option Agreement to purchase a 100% interest in and to certain realproperty, as depicted on Exhibit A, together with all appurtenant rights associated therewith and improvements located thereon, land situated in Dickenson County, VA.

	 
	 
	 
	 
	 
	 
	 
	 
	 
	 
	 

	Rolling Thunder (Peerless)
	Twentymile Creek of Gauley River, Jefferson District of Nicholas County, WV
	CCL-10068
	Leased
	Surface & Coal
	Contura CAPP Land, LLC
	WPP LLC
	Unrecorded
	07/01/2005
	N/A
	Coal Lease for former between Dingess-Rum Properties, Inc., on 2,484 ac tract.

	CCL-10073
	Leased
	Surface & Coal
	Contura CAPP Land, LLC
	ACIN LLC
	Unrecorded
	05/12/1999
	N/A
	Sublease Agreement between Ark Land Company, now held by ACIN LLC, Sublessor, and Chicopee Coal Company, Inc. (subsequently assigned to Contura Capp Land, LLC), Sublessee, for Amherst Property.

	CCL-10074
	Leased
	Surface & Coal
	Contura CAPP Land, LLC
	ACIN LLC
	67/654
	05/12/1999
	N/A
	Sublease Agreement between Ark Land Company, now with ACIN, LLC,Sublessor, and Chicopee Coal Company, Inc., assigned to Belle Coal Company, Inc., then assigned to Boone East Development Company, subsequently assigned to Contura CAPP Land, LLC, Sublessee, for Wriston Property.






    







	
											
	SURFACE MINES
	Location
	TRAX #
	Leased/ 
Owned or other
	Surface/Coal
	Lessee/Grantee
	Lessor/Grantor
	Book/Page
	Date
	Tax Map/Account #
	Description

	Kiwanis Park (Clintwood, Blair,& Eagle)
	 
	CCL-00023
	Leased
	Surface & Coal
	Contura CAPP Land, LLC
	ACIN LLC
	385/650
	04/01/2003
	N/A
	Coal Mining Lease for the right to mine coal on Lessor's property by surfaceor deep mining methods, located in the VA counties of Buchanan, Russell, Dickenson, Wise and Scott.

	CCL-01000
	Leased
	Surface
	Contura CAPP Land, LLC
	Cox, Clara
	475/804
	3/22/2010/
	7380
	Surface Rights Agreement granting right to mine in Dickenson County, VA.

	CCL-01001
	Leased
	Surface
	Contura CAPP Land, LLC
	Fields, Stoney F. & Eurabell
	475/800
	3/22/2010
	7036
	Surface Rights Agreement granting right to mine in Dickenson County, VA.

	CCL-01002
	Leased
	Surface
	Contura CAPP Land, LLC
	Hall, Ray Wayne
	476/796
	3/19/2010
	7214
	Surface Rights Agreement granting right to mine in Dickenson County, VA.

	CCL-01006
	Leased
	Surface
	Contura CAPP Land, LLC
	Hay, R. Charles & Linda L.
	476/152
	03/24/2010
	18997
	Surface Rights Agreement granting right to mine in Dickenson County, VA.

	CCL-01007
	Leased
	Surface
	Contura CAPP Land, LLC
	Kiwanis Club of Haysi, Inc.
	476/156
	3/26/2010
	17635
	Surface Rights Agreement granting right to mine in Dickenson County, VA.

	CCL-01010
	Leased
	Surface
	Contura CAPP Land, LLC
	Mullins, Chris & Rebecca
	476/690
	4/22/2010
	8456;22519
	Surface Rights Agreement granting right to mine in Dickenson County, VA.

	CCL-01163
	Leased
	Surface
	Contura CAPP Land, LLC
	J.D. & Sandra Bailey, (Ray Hall)
	502/578
	11/09/2012
	7205
	Surface Rights Agreement granting right to mine in Dickenson County, VA.

	CCL-01024
	Leased
	Surface
	Contura CAPP Land, LLC
	Bailey, Edith
	477/775
	6/8/2010
	6497;6491
	Surface Rights Agreement granting right to mine in Dickenson County, VA.

	 
	 
	 
	 
	 
	 
	 
	 
	 
	 
	 

	Doe Branch (Eagle-Blair)
	Doe Branch of Russell-Prater Creek, Dickenson County
	CCL-00023
	Leased
	Surface & Coal
	Contura CAPP Land, LLC
	ACIN LLC
	385/650
	04/01/2003
	N/A
	Coal Mining Lease for the right to mine coal on Lessor's property by surfaceor deep mining methods, located in the VA counties of Buchanan, Russell, Dickenson, Wise and Scott.

	 
	 
	 
	 
	 
	 
	 
	 
	 
	 
	 

	Long Branch HWM/Wampler Ridge Surface (Upper & Lower Banner)
	Dickenson County, VA
	CCL-00023
	Leased
	Surface & Coal
	Contura CAPP Land, LLC
	ACIN LLC
	385/650
	04/01/2003
	N/A
	Coal Mining Lease for the right to mine coal on Lessor's property by surfaceor deep mining methods, located in the VA counties of Buchanan, Russell, Dickenson, Wise and Scott.

	CCL-01151
	Leased
	Surface
	Contura CAPP Land, LLC
	French, David F. & Jeanette et al
	500/596
	6/1/2012
	2489;20057;20058;20059; 20060
	Surface Rights Agreement granting right to mine in Dickenson County, VA.

	CCL-01169
	Leased
	Surface
	Contura CAPP Land, LLC
	Columbus Phipps Foundation
	504/71
	1/1/2013
	3142
	Surface Rights Agreement granting right to mine on 1/3rd int in 30 ac inDickenson County, VA.

	CCL-01170
	Leased
	Coal
	Contura CAPP Land, LLC
	Columbus Phipps Foundation
	504/76
	1/1/2013
	3141, 11659
	Lease Agreement granting right to mine the Lower Banner seam and above.

	CCL-01194
	Leased
	Surface
	Contura CAPP Land, LLC
	Rasnick, Ruben Wayne & Letici
	515/184
	3/25/2014
	5719
	Surface Rights Agreement granting right to mine in Dickenson County, VA.

	PAR-00363
	Owned
	Surface
	Paramont Contura, LLC
	Eva Mae Adkins
	502/652
	12/27/2012
	3142
	Deed for 2/3rds interest in the surface only of a 30 ac. tract of land situatedin Dickenson County, VA.

	PAR-00363
	Owned
	Surface
	Paramont Contura, LLC
	Eva Adkins, aka Eva Mae MullinsAdkins, widow
	502/652
	12/27/2012
	3137
	Deed for the surface only of a 32 ac. tract of land situated in DickensonCounty, VA.

	PAR-00375
	Owned
	Surface
	Paramont Contura, LLC
	Matthew Deel and Sherry M. Deel,husband and wife,
	509/170
	07/18/2013
	25516
	Deed for the surface only of a 10.8 ac. tract of land situated in DickensonCounty, VA.

	 
	 
	 
	 
	 
	 
	 
	 
	 
	 
	 

	Three-Forks II (Tiller - Upper Banner)
	Dickenson County, VA
	CCL-00023
	Leased
	Surface & Coal
	Contura CAPP Land, LLC
	ACIN LLC
	385/650
	04/01/2003
	N/A
	Coal Mining Lease for the right to mine coal on Lessor's property by surfaceor deep mining methods, located in the VA counties of Buchanan, Russell, Dickenson, Wise and Scott.

	 
	 
	 
	 
	 
	 
	 
	 
	 
	 
	 















	
											
	Copperhead Gap (Aily - Upper Banner)
	Buchanan, VA
	CCL-00023
	Leased
	Surface & Coal
	Contura CAPP Land, LLC
	ACIN LLC
	Inst # 030001352
	04/01/2003
	N/A
	Coal Mining Lease for the right to mine coal on Lessor's property by surfaceor deep mining methods, located in the VA counties of Buchanan, Russell, Dickenson, Wise and Scott.




















Schedule 2.01 
Commitments and L/C Sublimit
	
			
	Lender
	Commitment
	L/C Sublimit

	Citibank, N.A.
	$30,000,000
	$30,000,000

	Credit Suisse AG, Cayman Islands Branch
	$25,000,000
	$25,000,000

	BMO Harris Bank N.A.
	$25,000,000
	$25,000,000

	Jefferies Finance LLC
	$15,000,000
	N/A

	UBS AG, Stamford Branch
	$15,000,000
	N/A

	Webster Business Credit Corporation
	$15,000,000
	N/A

	Total
	$125,000,000
	$80,000,000
















    








Schedule 5.03 
Governmental Approvals
		
	•
	Certain consents, authorizations, filings or other actions with or by any Governmental Authority may be required in connection with the exercise of remedies by the Collateral Agent after an Event of Default.








    








Schedule 5.08(b) 
Material Owned Real Property
	
						
	Deed Date
	Grantor
	DB/PG or 
Inst #
	Active Location
	Facility
	TRAX No.

	PARAMONT CONTURA, LLC
	 
	 
	 
	 

	07/26/2016
	Alpha Natural Resources, Inc.
	201603536
	Wise County, VA
	Toms Creek Preparation Plant and Loadout
	PAR-00448

	07/26/2016
	Alpha Natural Resources, Inc.
	201603538
	Wise County, VA
	Esserville Deep Mine Shop and Facilities (former Maxxim Rebuild, LLC)
	PAR - 00422

	DICKENSON-RUSSELL CONTURA, LLC
	 
	 
	 
	 

	07/26/2016
	Old ANR, LLC (successor by conversion to Alpha Natural Resources, Inc.) and Contura CAPP Land, LLC
	539/402
	Dickenson County, VA
	McClure Preparation Plant and Loadout
	DRC-00185

	POWER MOUNTAIN CONTURA, LLC
	 
	 
	 
	 

	07/22/2016
	Alpha Natural Resources, Inc.
	500/588
	Nicholas County, WV
	Power Mountain Preparation Plant and Loadout
	Not yet in TRAX

	CONTURA ENERGY SERVICES, LLC
	 
	 
	 
	 

	07/22/2016
	Alpha Natural Resources, Inc.
	302/09
	Boone County, WV
	Running Right Leadership Academy
	Not yet in TRAX

	CONTURA WYOMING LAND, LLC
	 
	 
	 
	 

	07/22/2016
	Alpha Natural Resources, Inc.
	 
	Campbell County, WY (portion described below) Township 48 North, Range 71 West, 6th P.M. Section 34: E 1⁄2 NE 
Campbell County, WY (portion described below)
	Belle Ayr Load Out
	Not yet in TRAX






    







	
						
	07/22/2016
	Alpha Natural Resources, Inc.
	 
	Township 51 North, Range 72 West, 6th P.M.  Section 22: SWNW Section 21: S 1⁄2 NE
	Eagle Butte Load Out
	Not yet in TRAX

	CONTURA PENNSYLVANIA TERMINAL, LLC
	 
	 
	 
	 

	07/26/2016
	Alpha Natural Resources, Inc
	3314/2365
	Fayette County, PA
	LaBelle Dock
	Not in TRAX yet

	CONTURA COAL RESOURCES, LLC
	 
	 
	 
	 

	07/26/2016
	Alpha Natural Resources, Inc
	492/2885
	Greene County, PA
	Future reserve area
	Not in TRAX yet

	EMERALD CONTURA, LLC
	 
	 
	 
	 

	07/26/2016
	Alpha Natural Resources, Inc
	492/30151
	Greene County, PA
	Former Emerald Mine Area
	Not in TRAX yet

	CUMBERLAND CONTURA, LLC
	 
	 
	 
	 

	07/26/2016
	Alpha Natural Resources, Inc
	492/29942
	Greene County, PA
	Cumberland Mine Area
	Not in TRAX yet

	CONTURA PENNSYLVANIA LAND, LLC
	 
	 
	 
	 

	07/26/2016
	Alpha Natural Resources, Inc
	492/2955
	Greene County, PA
	Future Freeport reserve area
	Not in TRAX yet

	10/31/2016
	Old ANR, LLC (f/k/a Alpha Natural Resources, Inc.)
	495/3459
	Greene County, PA
	Deed of Correction
	Not in TRAX yet

	CONTURA PENNSYLVANIA LAND, LLC
	 
	 
	 
	 

	07/26/2016
	Alpha Natural Resources, Inc
	492/28993
	Greene County, PA
	General Pennsylvania Property
	Not in TRAX yet

	10/31/2016
	Old ANR, LLC (f/k/a Alpha Natural Resources, Inc.
	495/3367
	Greene County, PA
	Deed of Correction
	Not in TRAX yet

	CONTURA ENERGY SERVICES, LLC
	 
	 
	 
	 

	07/26/2016
	Alpha Natural Resources, Inc
	492/3023
	Greene County, PA
	Portal Road office area
	Not in TRAX yet

	CONTURA PENNSYLVANIA LAND, LLC
	 
	 
	 
	 

	07/26/2016
	Alpha Natural Resources, Inc
	492/2893
	Greene County, PA
	Future Freeport reserve area
	Not in TRAX yet





1Less and excepting Parcels 07-06-120, 120A, 120B and 120D that are in the process of being conveyed to third parties.
2Less and excepting 42 acres of Parcel 29-05-127 and all of Parcel 29-06-127A that are in the process of being conveyed to third parties.
3Less and excepting Parcels 07-04-128A, 07-04-129 and 07-03-0130 that are in the process of being conveyed to third parties.













Schedule 5.08(c) 
Material Leased Real Property
	
				
	Deed Date
	Grantor
	Active Location
	Notes

	CONTURA WYOMING LAND, LLC
	 

	11/01/2001
	United States Department of theInterior, by and through Bureau of Land Management
	Campbell County, WY (2666/00177)
	Belle Ayr Mine (Lease WYW 161248) TRAX No AWL-00036

	04/02/2015
	State of Wyoming by and through Board of Land Commissioners
	Campbell County, WY (1978/531)
	Belle Ayr Mine (Lease 0- 26954A) TRAX No AWL-00149

	09/01/1965
	United States Department of the Interior, by and through Bureau of Land Management
	Campbell County, WY (56/552)
	Eagle Butte Mine (WYW 0313733) (AWL-00144)

	08/17/1982
	United States Department of the Interior, by and through Bureau of Land Management
	Campbell County, WY (692/92)
	Eagle Butte Mine (WYW 78631) (AWL-00003)

	08/01/1995
	United States Department of the Interior, by and through Bureau of Land Management
	Campbell County, WY (1366/664)
	Eagle Butte Mine (WYW 124783) (AWL-00002)

	 
	 
	 
	 

	05/01/2008
	United States Department of the Interior, by and through Bureau of Land Management
	Campbell County, WY (2357/182)
	Eagle Butte Mine (Lease WYW 155132) (AWL-00006)

	CONTURA CAPP LAND, LLC
	 

	04/01/2003
	ACIN LLC
	Dickenson County, VA (385/650)
	Active Paramont Contura, LLC mines on this property include: DM#25, DM#26, DM#37, DM#41, DM#44, Bear Ridge, Cabin Ridge, 88 Strip, (ALR -000023)

	04/01/2003
	ACIN LLC
	Russell County VA (579/619)
	Active Paramont Contura, LLC mines on this property include: DM#25, DM#26, DM#37, DM#41, DM#44, Bear Ridge, Cabin Ridge, 88 Strip, (ALR -000023)






    







	
				
	Deed Date
	Grantor
	Active Location
	Notes

	04/01/2003
	ACIN LLC
	Wise County, VA (200301638)
	Active Paramont Contura, LLC mines on this property include: DM#25, DM#26, DM#37, DM#41, DM#44, Bear Ridge, Cabin Ridge, 88 Strip, (ALR -000023)

	04/01/2003
	ACIN LLC
	Scott County, VA (615/974)
	Active Paramont Contura, LLC mines on this property include: DM#25, DM#26, DM#37, DM#41, DM#44, Bear Ridge, Cabin Ridge, 88 Strip, (ALR -000023)

	04/01/2003
	ACIN LLC
	Buchanan County, VA (567/285)
	Active Paramont Contura, LLC mines on this property include: DM#25, DM#26, DM#37, DM#41, DM#44, Bear Ridge, Cabin Ridge, 88 Strip, (ALR -000023)

	CONTURA PENNSYLVANIA LAND, LLC
	 

	12/04/1980
	Talen Generation, LLC (formerly known as PPL Generation, LLC, parent of Realty Company of Pennsylvania, successor to Greene Manor Coal Company)
	Greene County, PA (656/987) and (492/3036)
	Cumberland Mine (PLH- 00889)




















Schedule 5.09 
Environmental Matters
None.






    








Schedule 5.13 
Subsidiaries
	
	
	Subsidiaries of the Company

	Contura Energy, LLC

	Contura Energy Services, LLC

	Contura Mining Holding, LLC

	Contura CAPP Land, LLC

	Contura Coal Resources, LLC

	Contura Coal Sales, LLC

	Contura Coal West, LLC

	Contura European Marketing, LLC

	Contura Freeport, LLC

	Contura Pennsylvania Land, LLC

	Contura Pennsylvania Terminal, LLC

	Contura Terminal, LLC

	Contura Wyoming Land, LLC

	Cumberland Contura, LLC

	Dickenson-Russell Contura, LLC

	Emerald Contura, LLC

	Nicholas Contura, LLC

	Paramont Contura, LLC

	Power Mountain Contura, LLC






















Schedule 5.18 
Intellectual Property
None.






    








Schedule 5.20 
Mines
See attached.








    








SCHEDULE 5.20
	
											
	MSHA ID
	Operator
	Mine Name
	Type
	Status
	Longitude
	Latitude
	Directions to Mine
	County
	Nearest
Town/City
	State

	4405270
	Paramont Contura, LLC
	Toms Creek Complex
	Facility
	Active
	82.452778
	36.972222
	Go 2.4 miles on US 23 South, take exit 28 onto Alt. 58 East, go 7.9 miles, go right onto Exit 1 then left onto Route 72 North. Go 1.9 miles and turn right onto Route 652. Go 3 miles and facility is on the left. Toms Creek Road, Coeburn, Va 24230
	Wise
	Coeburn
	VA

	4406929
	Paramont Contura, LLC
	Deep Mine #26
	Underground
	Active
	82.514722
	37.0925
	Travel North on HWY 23 to Pound, Va, take business 23 exit. Turn right on SR 63 toward Clintwood, Va. Turn on to Red Onion Prison Rd, Turn left on to Chip Mill Rd 1.5 miles to mine. Rt 665 Off Rt 72 Clintwood Va  24228
	Dickenson
	Pound
	VA

	4407163
	Paramont Contura, LLC
	88 Strip
	Surface
	Active
	82.158889
	37.075556
	Go 2.4 mi. on US23S to Exit 2B To Alt.58E, GO 19.7 MI. lEFT onto Rt. 63N, go3.9 mi. Right onto Rt. 615, go 7.2 mi. Go straight onto Rt. 600,go 1 mi. Right onto Rt. 621, go 4.3 mi.Left onto Rt. 601, go 5.5 mi. 4536 Monte Road, Cleveland Va 24225
	Dickenson
	Bee
	VA

	4407223
	Paramont Contura, LLC
	Deep Mine 41
	Underground
	Active
	82.388333
	37.096111
	North 23 to Pound Exit, turn right on to Rt. 83 to Clintwood bearing right toward McClure, turn right onto Route 63 at Fremont, go 2 miles and turn right onto mine road. Mine is on the left. Route 773 Off Rt 63 McClure, Va 24269
	Dickenson
	McClure
	VA

	4407322
	Paramont Contura, LLC
	Cabin Ridge Surface Mine
	Surface
	Active
	82.230556
	37.039167
	Go 2.4 miles on US 23S to Exit 2B onto Alt 58E, go 19.7 mi. Left onto Rt 63N, go 10.5 mi Right onto Rt 657, go 5.1 mi. Turn left onto Rt 699 mine on right. 1300 Counts Ridge Dante Va  24237
	Dickenson
	Dante
	VA

	4407367
	Paramont Contura, LLC
	Toms Creek North
	Underground
	New Mine
	82.463056
	36.973889
	From Coeburn, Va. take St. Rt. 72N 1.66 miles to St. Rt. 652(Ralph Stanley Hwy.). Turn right onto St. Rt. 652( Ralph Stanley Hwy). Go .4 miles. Turn left onto Tom┐s Creek Prep. Plant Raw Coal Rd. Stay to left and go .38 miles to the mine yard. 12237 Tom’s Creek Rd.Coeburn, VA. 24230
	Wise
	Coeburn
	VA

	 
	 
	 
	 
	 
	 
	 
	 
	 
	 
	 

	4400271
	Dickenson-Russell Contura, LLC
	Moss No 1 Preparation Plant
	Facility
	NonProducing
	82.525
	37.125
	Take U. S. 23 North to Pound Exit onto Business 23 Travel approximately 3 miles and turn right onto RT 83. Travel Rt. 83 for approxiamtely 5 miles. Turn right at Red onion Prison RD,2 miles mine on left
	Dickenson
	Pound
	VA

	4402277
	Dickenson-Russell Contura, LLC
	Moss #3 Plant
	Facility
	NonProducing
	82.186111
	36.952778
	Go 2.4 miles on US235 to Ext 2B onto Alt 58E, go 19.7 mi. left onto rt. 63N, go3.9 mi. Right onto Rt.615, go 5 mi. facility is on left. Route 615, Cleveland Va 24225
	Russell
	Cleveland
	VA

	4405311
	Dickenson-Russell Contura, LLC
	McClure River Plant
	Facility
	Active
	82.391667
	37.108333
	Travel 9.1 miles on US23North. Turn right onto Business 23 North, go 1.8 miles. Turn right onto Route 83, go 15.2 miles. Turn Right onto Route 63. Go 3 miles, turn right to Facility entrance.
	Dickenson
	McClure
	VA

	 
	 
	 
	 
	 
	 
	 
	 
	 
	 
	 

	4608787
	Nicholas Contura LLC
	Jerry Fork Eagle
	Underground
	Active
	80.990556
	38.298611
	39 West, 11 miles, turn right on Jerry Fork Rd. # 2 Jerry Fork Road, Drennen,
	Nicholas
	Drennen
	WV

	4606880
	Power Mountain Contura LLC
	Power Mountain Processing
	Facility
	Active
	81.002778
	38.326667
	# 2 Jerry Fork Road, Drennen Wv 26667
	Nicholas
	Drennen
	WV

	 
	 
	 
	 
	 
	 
	 
	 
	 
	 
	 

	3609741
	Contura Freeport LLC
	Freeport Mine
	Underground
	Temporarily Idled
	68.847222
	41.146111
	1/2 mile south of Clarksville, PA on SR 1011
	Greene
	Clarksville
	PA






    







	
											
	MSHA ID
	Operator
	Mine Name
	Type
	Status
	Longitude
	Latitude
	Directions to Mine
	County
	Nearest
Town/City
	State

	3605018
	Cumberland Contura, LLC
	Cumberland Mine
	Underground
	Active
	79.970556
	39.799722
	From Ruff Creek, take Route 19 South to Waynesburg. Turn right at first stop light. Follow Rt 21 West approx. 3 miles. Turn left onto the Oak Forest Road. Go approx. 3 miles to village of Oak Forest. Go through the village and turn left at the white church. Go app. 1 mile to mine entrance on left.Cumberland No 9 Portal: 576 Maple RUn Road Wanesburg Pa 15370. Cumberland Preparation Plant: 855 Kirby Road Waynesburg Pa 15370
	Greene
	Waynesburg
	PA

	3605466
	Emerald Contura, LLC
	Emerald Mine No 1
	Facility
	NonProducing
	80.195833
	39.937778
	I-79 South to Waynesburg Exit. Route 21 West to U.S.Rt. 19 South to Rolling Meadows Road. Rolling Meadows Road to Garards Fort Road. Go app. 1.5 miles - mine on right. Portal No. 8 Emerald Preparatoin Plant: Route 218 South Waynesburg Pa 15370
	Greene
	Waynesburg
	PA

	 
	 
	 
	 
	 
	 
	 
	 
	 
	 
	 

	4800732
	Contura Coal West LLC
	Belle Ayr Mine
	Surface
	Active
	105.383056
	44.1
	18 miles south of Gillette on Highway 59. 2273 Bishop Road, Gillette WY 82718
	Campbell
	Gillette
	WY

	4801078
	Contura Coal West LLC
	Eagle Butte Mine
	Surface
	Active
	105.416667
	44.516667
	8 Miles North of Gillette on Highway 14-16. 10023 Hwy 14-16 Gillette Wy82718
	Campbell
	Gillette
	WY

	 
	 
	 
	 
	 
	 
	 
	 
	 
	 
	 

	4407308
	 
	Deep Mine 44 (Contract Mine)
	Deep
	Active
	82o 22’ 28”
	37o 03’ 32”
	The mine site is located off RT.652 on Rush Branch of Open Fork of the McClure River, Access to the mine will be 1.3 miles west of Rt. 63 at Nora, Va. Then 1 mile up Rush Branch which is the haulroad at latitude 37o 03’ 32” and longitude 82o 22’ 28” in Dickenson County, Virginia.  1004 Hammons Road, Nora Va 24272
	Dickenson
	Nora
	VA

	4407129
	 
	Deep Mine 25 (Contract Mine)
	Deep
	Active
	82o 31’ 44”
	37o 08’ 06”
	The mine site is located on RT.83, 5 miles east of Pound, Va. at latitude 37o 08’ 06” and longitude 82o 31’ 44” in Dickenson County, Virginia.   1200 Dickenson Highway Clintwood Va  24228
	Dickenson
	Clintwood
	VA

	4407217
	 
	Bear Ridge (Contract Mine)
	Deep
	Active
	37o 03’ 35”
	82o 15’ 42”
	The mine site is located in Dickenson County approximately 2.5 miles northeast of Trammel off State Route 656. The site covers approximately6.45 acres at latitude 37o 03’ 35” and longitude 82o 15’ 42” on the Nora 7.5’ USGS Quadrangle. The mine site situated along Rush Branch of Roaring Fork. Access to the mine will be from State Route 656 2.25 miles east of State Route 63.  767 Four O Road Dante Va 24237
	Dickenson
	Dante
	VA

	4407231
	 
	Deep Mine 37 (Contract Mine)
	Deep
	Active
	37o 03’ 35”
	82o 15’ 42”
	The mine site is located in Dickenson County approximately 6 miles from Clintwood, Va. off of  The Lake Road (St. Rt. 607). Turn right onto Dwale Lane. Go approximately .7 miles to the mine. The site covers approximately 6.45 acres at latitude 37o 03’ 35” and longitude 82o 15’ 42” on the Nora 7.5’ USGS Quadrangle. The mine site situated along Rush Branch of Roaring Fork.Access to the mine will be from State Route 607 6 miles northeast of Clintwood 3 way red light at the junction of State Route 83 and The Lake Road (St. Rt. 607).   1103 Dwale Lane, Clintwood Va 24228
	Dickenson
	Clintwood
	VA

	4407306
	 
	Reedy Ridge (Contract Mine)
	Deep
	Active
	37o 06’ 25.12”
	82o 23’ 45.90”
	The mine site is located in Dickenson County approximately 1.2 miles west of McClure off State Route 773. The site covers approximately 0.7 acres at latitude 37o 06’ 25.12” and longitude 82o 23’ 45.90” on the Caney Ridge 7.5’ USGS Quadrangle. The site is situated along Caney Creek. Access to the mine will be from State Route 773 through Dickenson-Russell Coal Company’s McClure Preparation Plant (Permit #1401833) then towards the Refuse Area. 2676 Herndon Road, McClure Va 24237
	Dickenson
	McClure
	VA















	
											
	MSHA ID
	Operator
	Mine Name
	Type
	Status
	Longitude
	Latitude
	Directions to Mine
	County
	Nearest
Town/City
	State

	3600897
	 
	La Belle Dock Facility
	Facility
	Active
	79.98999786
	40.01
	106 East Fredericktown Road, LaBelle, Pennsylvania 15450
	Fayette
	La Belle
	PA

	 
	 
	 
	 
	 
	 
	 
	 
	 
	 
	 






















Schedule 6.20 
Post Closing Schedule
		
	1.
	Subject to the limitations set forth in the Security Agreement, unless otherwise agreed by the Administrative Agent, in its discretion, no later than 60 days after the Closing Date, deliver to the Administrative Agent a control agreement in respect of each deposit account, securities account or commodities account constituting Collateral identified in the Security Agreement.


		
	2.
	Within 90 days after the Closing Date (or such later date as the Administrative Agent, in its discretion, may agree), (A) deliver to the Administrative Agent executed counterparts of one or more Mortgages on all Material Real Property in a form appropriate for recording in the applicable recording office, (B) provide the Administrative Agent with such information as may be reasonably requested for the Administrative Agent to obtain “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determinations in respect of the Material Real Property and, if any Material Real Property is located in a special flood hazard area, (1) execute and return to the Administrative Agent any notice about special flood hazard area status and flood disaster assistance delivered to the Company by the Administrative Agent and (2) provide evidence of applicable flood insurance as required by Section 6.07(b)(i) if such Material Real Property constitutes Collateral, (C) deliver to the Administrative Agent customary local counsel legal opinions (which, for the avoidance of doubt, shall not include any title opinions) from counsel in such jurisdictions as the Material Real Property is located, each in form and substance reasonably satisfactory to Administrative Agent or the Collateral Agent, (D) to the extent required by the Administrative Agent, use commercially reasonable efforts to deliver to the Administrative Agent evidence of the filing of as-extracted UCC-1 financing statements in the appropriate jurisdiction and (E) payment by the Company of all mortgage recording taxes and related charges required for the recording of such Mortgages unless, in the judgment of the Administrative Agent, delivery of such materials is unnecessary to ensure the Secured Parties benefit from a perfected First Priority security interest (subject to Permitted Real Estate Encumbrances) in such Material Real Property in favor of the Collateral Agent and such flood insurance (it is understood that in lieu of any new Mortgage, mortgage supplements or any other security documents may be delivered if reasonably acceptable to the Administrative Agent).


		
	3.
	With respect to any leasehold interest of the Company or any Restricted Subsidiary that would constitute Material Real Property but for the need to obtain the consent of another Person (other than the Company or any Controlled Subsidiary) in order to grant a security interest therein, use commercially reasonable efforts to obtain such consent for no more than 150 days following the Closing Date, provided that nothing herein shall be construed as requiring the Company or any Restricted Subsidiary to pay any sums to the applicable lessor or to file suit or terminate a lease, or to threaten to do so, other than immaterial or incidental fees and expenses (it is understood, for avoidance of doubt, that, without limiting the foregoing obligations of the Company set forth in this Paragraph 3, any failure to grant a security interest in any such leasehold interest as a result of a failure to obtain a consent shall not be a Default hereunder, and, for avoidance of doubt, the Borrower and its Restricted Subsidiaries shall no longer be required to use commercially reasonable efforts to obtain any such consent after the above-mentioned time periods).








    








Schedule 7.01 
Existing Liens
	
						
	Debtor
	Secured Party
	Location
	Filing
Number
	Filing Date
	Notes

	Contura Energy Services, LLC
	Bank of Utah, as Owner Trustee under the Trust Agreement
	DE SOS
	2016 4519334
	7/26/2016
	Lien related to the Aircraft Operating Agreement (N731BP)

	Contura Energy Services, LLC
	CSC Leasing Company
	DE SOS
	2016 5287246
	8/30/2016
	Equipment

	Contura Energy Services, LLC
	CSC Leasing Company
	DE SOS
	2017 0240017
	1/11/2017
	Equipment

	Contura Coal West, LLC
	Wyoming Department of Environmental Quality
	DE SOS
	2016 4869846
	8/11/2016
	Equipment

	Contura Coal West, LLC
	Wyoming Department of Environmental Quality
	DE SOS
	2016 4870083
	8/11/2016
	Equipment

	Contura Coal West, LLC
	Caterpillar Financial Services Corporation
	DE SOS
	2016 6589756
	10/26/2016
	Equipment

	Contura Coal West, LLC
	Joy Global Surface Mining, Inc.
	DE SOS
	2016 7213273
	11/21/2016
	Equipment

	Contura Coal West, LLC
	Joy Global Surface Mining, Inc.
	DE SOS
	2016 7213406
	11/21/2016
	Equipment












    








Schedule 7.02 
Existing Investments
	
			
	Owner
	Investment
	Ownership Interest

	Contural Terminal, LLC
	Dominion Terminal Associates
	40.625%*

	Contura Coal West, LLC
	Wyoming Quality Healthcare Coalition
	33 1/3%






*Contura Energy, Inc.  will acquire, on or around March 31, 2017, additional ownership interests in Dominion Terminal Associates for a total ownership percentage of 65%.
Other Investments
		
	1.
	The loan evidenced by that certain Promissory Note, dated April 1, 2016, made by Four-O-Mining Corporation, a Virginia corporation, in favor of Paramont Contura, LLC (as assigned by Paramont Coal Company Virginia, LLC) in the amount of $180,000.  As of February 2017, the amount outstanding under this loan is $122,466.42










    








Schedule 7.03 
Existing Indebtedness
		
	1.
	VEBA contributions for non-union retirees in an amount not to exceed $7,000,000 in the aggregate.


		
	2.
	Limited Guaranty, dated December 22, 2016, by Contura Energy, Inc.  in favor of the West Virginia Department of Environmental Protection (the “WVDEP”) to guarantee certain payment obligations of ANR, Inc.  of up to $4.5 M under the Reclamation Funding Agreement and that certain Permitting and Reclamation Plan Settlement Agreement for the State of West Virginia dated as of July 12, 2016, by and among ANR, Inc., Contura Energy, Inc.  and the WVDEP.


		
	3.
	Indebtedness under that certain (i) Life Cycle Management Agreement (Model 4100 XPB, S/N ES41125), dated October 30, 2014, by and between Joy Global Surface Mining Inc.  (“Joy”) and Contura Coal West, LLC (as successor to Alpha Coal West, Inc.) (“Contura Coal West”) and (ii) Life Cycle Management Agreement (Model 4100, S/N ES55301), dated October 30, 2014, by and between Joy and Contura Coal West.










    








Schedule 7.08 
Transactions with Affiliates
None.








    








Schedule 7.10 
Burdensome Agreements
None.








    








Schedule 11.02 
Agents’ Offices, Certain Addresses for Notices
If to the Borrower Representative:
Contura Energy, Inc. 
340 Martin Luther King Jr. Blvd. 
Bristol, Tennessee 37620 
Attention: Andy Eidson, Mark Manno 
Telephone: 423-573-0300 
Facsimile: 423-573-0448 
		
	Email:
	andy.eidson@conturaenergy.com 


mark.manno@conturaenergy.com


With a copy to:
Hunton & Williams LLP 
Riverfront Plaza, East Tower 
951 East Byrd Street 
Richmond, VA 23219 
Attention: Kimberly C. MacLeod 
Telephone: 804-787-8529 
Facsimile: 804-343-4668 
Email: kmacleod@hunton.com
If to the Administrative Agent:
Citibank, N.A. 
388 Greenwich St. 7th Floor 
New York, NY 10013 
Attn: Shane Azzara Tel: (212) 723-3748 
Fax: (646) 291-3359 
E-mail: shane.azzara@citi.com
If to the applicable L/C Issuer:
Citigroup | Asset Based & Transitional Finance 
388 Greenwich St., 8th Floor 
New York, NY, 10013 
Attn: Denise Perry 
Tel: (212) 723-3755 
Fax: (646) 291-3358 
E-mail: denise.perry@citi.com


















EXHIBIT A 
TO 
CREDIT AGREEMENT
FORM OF BORROWING NOTICE
_______________ __, _______
Citibank, N.A. 
as Administrative Agent under the 
Credit Agreement referred to below 
388 Greenwich St. 7th Floor 
New York, NY 10013 
Attention: [●]
		
	Re:
	Borrowing Notice (this “Notice”) of Contura Energy, Inc., Contura Energy, LLC, Emerald Contura, LLC, Dickenson-Russell Contura, LLC, Nicholas Contura, LLC, Contura Mining Holding, LLC, Contura Coal Resources, LLC, Contura Wyoming Land, LLC, Contura Coal Sales, LLC, Contura Energy Services, LLC, Power Mountain Contura, LLC, Cumberland Contura, LLC, Contura Pennsylvania Land, LLC, Contura Freeport, LLC, Contura European Marketing, LLC, Paramont Contura, LLC, Contura Pennsylvania Terminal, LLC, Contura CAPP Land, LLC, Contura Coal West, LLC and Contura Terminal, LLC (collectively, the “Borrowers”)


Reference is made to the Asset-Based Revolving Credit Agreement, dated as of April 3, 2017 (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “Credit Agreement”), by and among the Borrowers, the Guarantors party thereto, the Lenders and L/C Issuers party thereto from time to time and Citibank, N.A., as Administrative Agent.  Capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement.
The Company, as Borrower Representative, hereby gives you notice, irrevocably, pursuant to Section 2.02(a) of the Credit Agreement that the undersigned hereby requests a Borrowing of Loans under the Credit Agreement and, in connection therewith, sets forth below the information relating to such Borrowing (the “Proposed Borrowing”) as required by Section 2.02(a) of the Credit Agreement:
A.    The Business Day of the Proposed Borrowing is    , (the “Funding Date”).
B.    The applicable Borrower requesting the     Proposed Borrowing is
C.    [The aggregate amount of the Borrowing is $          , of which amount [$ consists of Base Rate Loans] [and] [$ consists of Eurocurrency Rate Loans having an initial Interest Period of [one] [two] [three] [six] or [twelve]4 month[s]].]
The undersigned, being a Responsible Officer of the Company, hereby certifies, in its capacity as a Responsible Officer of the Company and not in his/her individual capacity, that the following statements are true and correct on the date hereof and will be true and correct on the Funding Date:

		
	 
	An Interest Period of twelve (12) months requires consent of all Lenders pursuant to the definition of “Interest Period” in the Credit Agreement.





A-1
    







A.    The representations and warranties of (i) the Borrowers contained in Article V of the Credit Agreement and (ii) each Loan Party contained in each other Loan Document are true and correct in all material respects on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, provided that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality or by a reference to a Material Adverse Effect in the text thereof;
B.    No Default or Event of Default has occurred or is continuing, or would result from the Proposed Borrowing or from the application of the Proceeds thereof; and
C.    After giving effect to any Credit Extension (or the incurrence of any L/C Obligations), the Total Outstandings shall not exceed the Maximum Revolving Credit.
[SIGNATURE PAGES FOLLOW]








A-2
    








IN WITNESS WHEREOF, the undersigned has caused this Notice to be executed and delivered by a duly authorized officer as of the date first written above.
	
		
	CONTURA ENERGY, INC.

	By:
	 

	 
	Name:   

	 
	Title:   












[SIGNATURE PAGE TO BORROWING NOTICE]
    








EXHIBIT B 
TO 
CREDIT AGREEMENT
FORM OF 
NOTICE OF CONVERSION OR CONTINUATION
FORM OF BORROWING NOTICE
_______________ __, _______
Citibank, N.A. 
as Administrative Agent under the 
Credit Agreement referred to below 
388 Greenwich St. 7th Floor 
New York, NY 10013 
Attention: [●]
Re:    Notice of Conversion or Continuation (this “Notice”) Contura Energy, Inc., Contura Energy, LLC, Emerald Contura, LLC, Dickenson-Russell Contura, LLC, Nicholas Contura, LLC, Contura Mining Holding, LLC, Contura Coal Resources, LLC, Contura Wyoming Land, LLC, Contura Coal Sales, LLC, Contura Energy Services, LLC, Power Mountain Contura, LLC, Cumberland Contura, LLC, Contura Pennsylvania Land, LLC, Contura Freeport, LLC, Contura European Marketing, LLC, Paramont Contura, LLC, Contura Pennsylvania Terminal, LLC, Contura CAPP Land, LLC, Contura Coal West, LLC and Contura Terminal, LLC (collectively, the “Borrowers”)
Reference is made to the Asset-Based Revolving Credit Agreement, dated as of April 3, 2017 (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “Credit Agreement”), by and among the Borrowers, the Guarantors party thereto, the Lenders and L/C Issuers party thereto from time to time and Citibank, N.A., as Administrative Agent.  Capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement.
The Company, as Borrower Representative, hereby gives you notice, irrevocably, pursuant to Section 2.02(a) of the Credit Agreement that the undersigned hereby requests, on behalf of the applicable Borrower ______________, a [conversion] [continuation] on     ______________,___, ____ of $ _________________ in principal amount of presently outstanding Loans that are [Base Rate] [Eurocurrency Rate] Loans having an Interest Period ending on    , ______________,___, ____ [to] [as] [Base Rate][Eurocurrency Rate] Loans.  [The Interest Period for such amount requested to be converted to or continued as Eurocurrency Rate Loans is [one] [two] [three] [six] or [twelve]5 month[s].]





5 An Interest Period of twelve (12) months requires consent of all Lenders pursuant to the definition of “Interest Period” in the Credit Agreement.



B-1
    








IN WITNESS WHEREOF, the undersigned has caused this Notice to be executed and delivered by a duly authorized officer as of the date first written above.
	
		
	CONTURA ENERGY, INC.6

	By:
	 

	 
	Name:   

	 
	Title:   











6 Notice of Conversion or Continuation must be signed by a Responsible Officer of the Company.



[SIGNATURE PAGE TO NOTICE OF CONVERSION OR CONTINUATION]
    








EXHIBIT C 
TO 
CREDIT AGREEMENT
FORM OF PROMISSORY NOTE 
(this “Note”)
	
			
	Lender: [NAME OF LENDER]
	 
	New York, New York

	Principal Amount: [$ ________________]
	 
	______________ __, ____




FOR VALUE RECEIVED, the undersigned, Contura Energy, Inc., Contura Energy, LLC, Emerald Contura, LLC, Dickenson-Russell Contura, LLC, Nicholas Contura, LLC, Contura Mining Holding, LLC, Contura Coal Resources, LLC, Contura Wyoming Land, LLC, Contura Coal Sales, LLC, Contura Energy Services, LLC, Power Mountain Contura, LLC, Cumberland Contura, LLC, Contura Pennsylvania Land, LLC, Contura Freeport, LLC, Contura European Marketing, LLC, Paramont Contura, LLC, Contura Pennsylvania Terminal, LLC, Contura CAPP Land, LLC, Contura Coal West, LLC and Contura Terminal, LLC (collectively, the “Borrowers”), hereby promise to pay, on a joint and several basis, to the order of the Lender set forth above (the “Lender”) the Principal Amount set forth above, or, if less, the aggregate unpaid principal amount of all Loans (as defined in the Credit Agreement referred to below) of the Lender to the Borrowers, payable at such times, and in such amounts, as are specified in the Credit Agreement.
The Borrowers promise to pay interest on the unpaid principal amount of the Loans from the date made until such principal amount is paid in full, at such interest rates, and payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in Dollars to Citibank, N.A., as Administrative Agent, at 388 Greenwich St.  7th Floor, New York, New York 10013, or at such other place as shall be designated in writing for such purpose in accordance with the terms of the Credit Agreement, in immediately available funds.
This Note is one of the Notes referred to in, and is entitled to the benefits of, the Asset-Based Revolving Credit Agreement, dated as of April 3, 2017 (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “Credit Agreement”), by and among the Borrowers, the Guarantors party thereto, the Lenders and L/C Issuers party thereto from time to time and Citibank, N.A., as Administrative Agent.  Capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement.
The Credit Agreement, among other things, (a) provides for the making of Loans by the Lender to the Borrowers in an aggregate amount not to exceed at any time outstanding the Principal Amount set forth above, the indebtedness of the Borrowers resulting from such Loans being evidenced by this Note and (b) contains provisions for acceleration of the maturity of the unpaid principal amount of this Note upon the happening of certain events stated therein and also for prepayments on account of the principal hereof prior to the maturity hereof upon the terms and conditions therein specified.
This Note is entitled to the benefits of the Guarantee provided in Article 10 of the Credit Agreement and is secured by the Collateral described in the Collateral Documents.
Demand, diligence, presentment, protest and notice of non-payment and protest are hereby waived by the Borrowers.


C-1
    







THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[SIGNATURE PAGES FOLLOW]






C-2
    








IN WITNESS WHEREOF, the Borrowers have caused this Note to be executed and delivered by a duly authorized officer as of the date first written above.
	
		
	CONTURA ENERGY, INC.,  
CONTURA ENERGY, LLC,  
EMERALD CONTURA, LLC, 
DICKENSON-RUSSELL CONTURA, LLC,
NICHOLAS CONTURA, LLC, 
CONTURA MINING HOLDING, LLC,
CONTURA COAL RESOURCES, LLC,
CONTURA WYOMING LAND, LLC,
CONTURA COAL SALES, LLC,  
CONTURA ENERGY SERVICES, LLC,
POWER MOUNTAIN CONTURA, LLC,
CUMBERLAND CONTURA, LLC,
CONTURA PENNSYLVANIA LAND, LLC,
CONTURA FREEPORT, LLC, 
CONTURA EUROPEAN MARKETING, LLC,  
PARAMONT CONTURA, LLC, 
CONTURA PENNSYLVANIA TERMINAL, LLC, 
CONTURA CAPP LAND, LLC,  
CONTURA COAL WEST, LLC  
CONTURA TERMINAL, LLC

	By:
	 

	 
	Name:   

	 
	Title:   
















[SIGNATURE PAGE TO PROMISSORY NOTE]
    








EXHIBIT D 
TO 
CREDIT AGREEMENT
FORM OF SWINGLINE LOAN NOTICE 
(this “Notice”)
______________ __, ____


Citibank, N.A. 
as Administrative Agent under the  
Credit Agreement referred to below  
388 Greenwich St.  7th Floor 
New York, NY 10013 Attention:    [●]
		
	Re:
	Swingline Loan Notice (this “Notice”) of Contura Energy, Inc., Contura Energy, LLC, Emerald Contura, LLC, Dickenson-Russell Contura, LLC, Nicholas Contura, LLC, Contura Mining Holding, LLC, Contura Coal Resources, LLC, Contura Wyoming Land, LLC, Contura Coal Sales, LLC, Contura Energy Services, LLC, Power Mountain Contura, LLC, Cumberland Contura, LLC, Contura Pennsylvania Land, LLC, Contura Freeport, LLC, Contura European Marketing, LLC, Paramont Contura, LLC, Contura Pennsylvania Terminal, LLC, Contura CAPP Land, LLC, Contura Coal West, LLC and Contura Terminal, LLC (collectively, the “Borrowers”).


Reference is made to the Asset-Based Revolving Credit Agreement, dated as of April 3, 2017 (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “Credit Agreement”), by and among the Borrowers, the Guarantors party thereto, the Lenders and L/C Issuers party thereto from time to time and Citibank, N.A., as Administrative Agent.  Capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement.
The Company, as Borrower Representative, hereby requests a Swingline Loan of Loans under the Credit Agreement and, in connection therewith, sets forth below the information relating to such Borrowing (the “Proposed Borrowing”) as required by Section 2.05(b) of the Credit Agreement:
A.    The Business Day of the Proposed Borrowing is    ,     ,    (the “Funding Date”).
B.    The applicable Borrower requesting the Proposed Borrowing is         .
C.    [The aggregate amount of the Borrowing is $         , which amount shall consist of Base Rate Loans.]
The undersigned, being a Responsible Officer of the Company, hereby certifies, in its capacity as a Responsible Officer of the Company and not in his/her individual capacity, that the following statements are true and correct on the date hereof and will be true and correct on the Funding Date:
D.    The representations and warranties of (i) the Borrowers contained in Article V of the Credit Agreement and (ii) each Loan Party contained in each other Loan Document are true and correct in all material respects on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such 


D-1
    







earlier date, provided that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality or by a reference to a Material Adverse Effect in the text thereof;
E.    No Default or Event of Default has occurred or is continuing, or would result from the Proposed Borrowing or from the application of the Proceeds thereof; and
F.    After giving effect to any Credit Extension (or the incurrence of any L/C Obligations), the Total Outstandings shall not exceed the Maximum Revolving Credit.
[SIGNATURE PAGES FOLLOW]






D-2
    








IN WITNESS WHEREOF, the undersigned has caused this Notice to be executed and delivered by a duly authorized officer as of the date first written above.
	
		
	CONTURA ENERGY, INC.7

	By:
	 

	 
	Name:   

	 
	Title:   











7Borrowing Notice must be signed by a Responsible Officer of the Company.



[SIGNATURE PAGE TO SWINGLINE NOTICE]
    








EXHIBIT E 
TO 
CREDIT AGREEMENT
FORM OF COMPLIANCE CERTIFICATE 
(this “Certificate”)
Financial Statment Date:_______, ____
To:    Citibank, N.A., as Administrative Agent 
Ladies and Gentlemen:
Reference is made to the Asset-Based Revolving Credit Agreement, dated as of April 3, 2017 (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “Credit Agreement”), by and among Contura Energy, Inc., Contura Energy, LLC, Emerald Contura, LLC, Dickenson-Russell Contura, LLC, Nicholas Contura, LLC, Contura Mining Holding, LLC, Contura Coal Resources, LLC, Contura Wyoming Land, LLC, Contura Coal Sales, LLC, Contura Energy Services, LLC, Power Mountain Contura, LLC, Cumberland Contura, LLC, Contura Pennsylvania Land, LLC, Contura Freeport, LLC, Contura European Marketing, LLC, Paramont Contura, LLC, Contura Pennsylvania Terminal, LLC, Contura CAPP Land, LLC, Contura Coal West, LLC and Contura Terminal, LLC (collectively, the “Borrowers”), the Guarantors party thereto, the Lenders and L/C Issuers party thereto from time to time and Citibank, N.A., as Administrative Agent.  Capitalized terms used herein shall have the meanings given to them in the Credit Agreement.
The undersigned Responsible Officer of the Company hereby certifies as of the date hereof that he/she is the          of the Company, and that, as such, he/she is authorized to execute and deliver this Compliance Certificate (this “Certificate”) to the Administrative Agent on the behalf of the Company, and that:
[Use following paragraph 1 for fiscal year-end financial statements]
1.    Attached hereto as Schedule 1 are (i) the year-end audited financial statements required by Section 6.01(a) of the Credit Agreement for the fiscal year of the Company ended as of the above date, together with the report and opinion of an independent certified public accountant required by such section and (ii) a detailed reconciliation of such financial information for the Company and its Restricted Subsidiaries, on the one hand, and the Company’s Unrestricted Subsidiaries, on the other hand (provided, that, for the avoidance of doubt, such reconciliation shall not be audited).  Such financial statements fairly present in all material respects the financial condition, results of operations, changes in shareholders’ equity and cash flows of the Company and its Subsidiaries in accordance with GAAP as at such date and for such period.
[Use following paragraph 1 for fiscal quarter-end financial statements]
1.    Attached hereto as Schedule 1 are (i) the unaudited financial statements required by Section 6.01(b) of the Credit Agreement for the fiscal quarter of the Company ended as of the above date and (ii) a detailed reconciliation of such financial information for the Company and its Restricted Subsidiaries, on the one hand, and the Company’s Unrestricted Subsidiaries, on the other hand.  Such financial statements fairly present in all material respects the financial condition, results of operations, changes in shareholders’ equity and cash flows of the Company and its Subsidiaries in accordance with GAAP as at such date and for such period, subject only to normal year-end audit adjustments and the absence of footnotes.


E-1
    







2.    The undersigned has reviewed the terms of the Credit Agreement and has made, or has caused to be made under his/her supervision, a review in reasonable detail of the financial condition of the Company 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 an Event of Default or Default during or at the end of the accounting period covered by the attached financial statements or as of the date of this Compliance Certificate except as set forth below, describing in detail, the nature of the condition or event and the status of such condition or event:
[          ]
4.    Unless as stated otherwise in a certificate of a Responsible Officer attached hereto, there has been no material change in accounting policies or financial reporting practices by the Company or any Subsidiary, except for any changes made in accordance with GAAP.
5.    Except as set forth on Schedule 2 hereto, subsequent to the date of the most recent Compliance Certificate submitted by the Company pursuant to Section 6.02(a) of the Credit Agreement, no Loan Party has (i) acquired any Instruments, Certificated Securities, Negotiable Documents or Tangible Chattel Paper with a value in excess of $3,000,000 individually, (ii) acquired any other Pledged Equity Interests, (iii) acquired any Commercial Tort Claim in an amount in excess of $3,000,000 (taking the greater of the aggregate claimed damages or reasonable estimated value), (iv) acquired or become the beneficiary of receivables in excess of $3,000,000 (in the aggregate) in respect of which the account debtor is a governmental authority, or (v) opened any new deposit accounts (other than Excluded Accounts).
[Use following paragraph 6 only after the occurrence and during the continuation of a  
Liquidity Period under the Credit Agreement.]
6.    The financial covenant analyses and information set forth on Schedule 3 attached hereto are true and accurate on and as of the date of this Certificate.
[SIGNATURE PAGES FOLLOW]






E-2
    








IN WITNESS WHEREOF, the undersigned has caused this Certificate to be executed and delivered by a duly authorized officer as of the date first written above.
	
		
	CONTURA ENERGY, INC.

	By:
	 

	 
	Name:   

	 
	Title:   












[SIGNATURE PAGE TO COMPLIANCE CERTIFICATE]
    








SCHEDULE 1 
to the Compliance Certificate 
[See attached]






E-4
    








SCHEDULE 2 
to the Compliance Certificate 
[See attached]






E-5
    








SCHEDULE 3
[Calculation of Fixed Charge Coverage Ratio is only required after the occurrence and during the continuation of a Liquidity Period under the Credit Agreement.]
For the fiscal [quarter][year] ended         ,      (“Statement Date”) 
Fixed Charge Coverage Ratio.
The Fixed Charge Coverage Ratio for the Test Period ended as of the Financial Statement Date written above (“Measurement Period”) is set forth below and [is/is not] greater than or equal to 1.00:1.00 for the Measurement Period.
Fixed Charge Coverage Ratio is defined as follows:
	
			
	A.
	Consolidated EBITDA of the Company and its Restricted Subsidiaries (per Exhibit A)
	$ 

	B.
	Non-financed Capital Expenditures (including Capital Expenditures financed with the proceeds of any Loans) paid or payable currently in cash by the Company or any of its Subsidiaries
	$

	C.
	Total (A minus B)
	$

	D.
	Fixed Charges of the Company and its Restricted Subsidiaries (per Exhibit C)
	$

	 
	Fixed Charge Coverage Ratio (C divided by D)
	 










E-6
    








EXHIBIT A 
CONSOLIDATED EBITDA
($ in 000’s)
Calculation of Consolidated EBITDA
	
						
	Consolidated EBITDA
	Quarter  
Ended
	Quarter  
Ended
	Quarter  
Ended
	Quarter  
Ended
	Twelve Months Ended

	As of the last day of any period, Consolidated Net Income (per Exhibit B) for such period plus, without duplication:
	 
	 
	 
	 
	 

	i. consolidated interest expense, determined in accordance with GAAP
	 
	 
	 
	 
	 

	ii. to the extent deducted in computing Consolidated Net Income, the sum of all income, franchise or similar taxes (and less income tax benefits)
	 
	 
	 
	 
	 

	iii. depreciation, depletion, amortization (including, without limitation, amortization of intangibles, deferred financing fees and any amortization included in pension or other employee benefit expenses) and all other non-cash items reducing Consolidated Net Income (including, without limitation, write-downs and impairment of property, plant, equipment and intangibles and other long-lived assets and the impact of acquisition accounting) but excluding, in each case, non-cash charges in a period which reflect cash expenses paid or to be paid in another period)
	 
	 
	 
	 
	 






F-7
    







	
						
	Consolidated EBITDA
	Quarter  
Ended
	Quarter  
Ended
	Quarter  
Ended
	Quarter  
Ended
	Twelve Months Ended

	iv. non-recurring restructuring costs, expenses and charges including, without limitation, all business optimization costs and expenses, facility opening, pre-opening and closing and consolidation costs and expenses, advisory and professional fees and stay and retention bonuses; provided that the amount of non- recurring restructuring costs, expenses and charges permitted to be added back pursuant to this clause for a four- quarter period shall not exceed 20% of Consolidated EBITDA for such period (calculated before giving effect to such add-back)
	 
	 
	 
	 
	 

	v. any expenses, costs or charges related to any equity offering, Investment permitted under Section 7.02 of the Credit Agreement, acquisition, disposition, recapitalization or Indebtedness permitted to be incurred by the indenture (whether or not successful)
	 
	 
	 
	 
	 

	vi. all non-recurring or unusual losses, charges and expenses (and less all non- recurring or unusual gains)
	 
	 
	 
	 
	 

	vii. all non-cash charges and expenses
	 
	 
	 
	 
	 

	viii. any debt extinguishment costs
	 
	 
	 
	 
	 

	ix. any amount of asset retirement obligations expenses
	 
	 
	 
	 
	 

	x. all Transaction Costs incurred in connection with the Transactions contemplated by the Credit Agreement
	 
	 
	 
	 
	 

	xi.  transaction costs, fees and expenses incurred during this period in connection with any acquisition or disposition not prohibited under the Credit Agreement or any issuance of debt or equity securities by the Company or any of its Restricted Subsidiaries, in each case, for such expenses
	 
	 
	 
	 
	 






F-8
    







	
						
	Consolidated EBITDA
	Quarter  
Ended
	Quarter  
Ended
	Quarter  
Ended
	Quarter  
Ended
	Twelve Months Ended

	xii. commissions, premiums, discounts, fees or other charges relating to performance bonds, bid bonds, appeal bonds, surety bonds, reclamation and completion guarantees and other similar obligations; provided that, with respect to any Restricted Subsidiary, such items will be added only to the extent and in the same proportion that the relevant Restricted Subsidiary’s net income was included in calculating Consolidated Net Income
	 
	 
	 
	 
	 

	= Consolidated EBITDA
	 
	 
	 
	 
	 

	Notwithstanding the foregoing, for purposes of determining First Lien Leverage Ratio and Total Leverage Ratio, Consolidated EBITDA for the fiscal quarters ended March 31, 2016, June 30, 2016, September 30, 2016 and December 31, 2016 shall be deemed to be $24,500,000, $24,500,000, $39,400,000 and $103,500,000, respectively.
	 
	 
	 
	 
	 






F-9
    








EXHIBIT B  
CONSOLIDATED NET INCOME
($ in 000’s)
Calculation of Consolidated Net Income
	
			
	A.
	The net income (or loss) attributable to the Company and its Restricted Subsidiaries (unless another Person is expressly indicated) for the period covered by the financial statements delivered herewith, determined in    accordance with GAAP:
	$

	B.
	Excluding, without duplication:
	 

	 
	1.   Noncash compensation expenses related to common stock and other equity securities issued to employees:
	$

	 
	2.   Extraordinary and non-recurring gains and losses:
	$

	 
	3.   Income or losses from discontinued operations or disposal of discontinued operations or costs and expenses associated with the closure of any mines (including any reclamation or disposal obligations):
	$

	 
	4.   Any non-cash impairment charges or asset write-off    resulting from the application of ASC 320 Investments-Debt and Equity Securities, ASC 323 Investments-Equity Method and Joint Ventures, ASC 350 Intangibles—Goodwill and Other and ASC 360 Property, Plant and Equipment and any future or similar ASC standards relating to impairment
	$

	 
	5.   Net unrealized gains or losses resulting in such period from non-cash foreign currency remeasurement gains or losses:
	$

	 
	6.   Net unrealized gains or losses resulting in such period    from the application ASC 815 Derivatives and Hedging, in each case, for such period:
	$

	 
	7.   Non-cash charges including non-cash charges due to cumulative effects of changes in accounting principles:
	$

	 
	8.   Any net income (or loss) for such period of any    Person that is not a Restricted Subsidiary or is    otherwise not a Subsidiary of such Person or that is accounted for by the equity method of accounting except to the extent of the amount of dividends or similar distributions paid in cash to the specified Person or a Restricted Subsidiary of the Person:
	$

	 
	9.   The net income (but not loss) of any Restricted Subsidiary to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that net income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders (other than any restriction that has been waived or released):
	$

	C.
	Plus, without duplication, any cash dividends and/or distributions actually received by the Company or a Restricted Subsidiary from any Unrestricted Subsidiary and/or Joint Venture during such period to the extent not already included therein:   
	$

	 
	Consolidated Net Income 
(A – B.1 – B.2 – B.3 – B.4 – B.5 – B.6 – B.7 – B.8 – B.9   $ + C)
	$






F-10
    








EXHIBIT C
FIXED CHARGES OF THE COMPANY AND ITS SUBSIDIARIES
	
			
	A.
	All scheduled amortization payments of principal paid or due and payable during the Measurement Period by the Company or any its Restricted Subsidiaries in respect of any Indebtedness under clause (a) of the definition of Indebtedness (including scheduled payments of the principal portion of Capital Lease Obligations
	$

	B.
	Consolidated interest expense (including the interest component of payments under Capital Lease Obligations) of the Company and its Restricted Subsidiaries for the Measurement Period
	$

	C.
	The aggregate amount of Federal, state, local and foreign income Taxes and franchise and similar Taxes (net of any benefit or credit) included in the determination of Consolidated Net Income paid in cash during the Measurement Period
	$

	D.
	All Restricted Payments of the type described in clause (a) of the definition of Restricted Payments payable in cash during the Measurement Period to any Person other than the Company and its Restricted Subsidiaries
	$

	 
	Fixed Charges (sum of A plus B plus C plus D)
	$






F-11
    








EXHIBIT F 
TO 
CREDIT AGREEMENT
FORM OF ASSIGNMENT AND ACCEPTANCE
This Assignment and Acceptance (the “Assignment and Acceptance”) 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 such terms in the Credit Agreement referenced below, receipt of a copy of which is hereby acknowledged by the Assignee.  The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Acceptance 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 (i) all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the Facility (including without limitation any letters of credit, guarantees, and swingline loans included in the Facility), and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by the Assignor to the Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”).  Each such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Acceptance, without representation or warranty by the Assignor.
1.  Assignor:                            
2.  Assignee:                            
		
	 
 
	Assignee is an [Affiliate][Approved Fund] of [identify Lender]


		
	3.  Borrowers:
	Contura Energy, Inc., Contura Energy, LLC, Emerald Contura,LLC, Dickenson-Russell Contura, LLC, Nicholas Contura, LLC, Contura Mining Holding, LLC, Contura Coal Resources, LLC, Contura Wyoming Land, LLC, Contura Coal Sales, LLC, Contura Energy Services, LLC, Power Mountain Contura, LLC, Cumberland Contura, LLC, Contura Pennsylvania Land, LLC, Contura Freeport, LLC, Contura European Marketing, LLC, Paramont Contura, LLC, Contura Pennsylvania Terminal, LLC, Contura CAPP Land, LLC, Contura Coal West, LLC and Contura Terminal, LLC(collectively, the “Borrowers”)




F-1
    







4.  Administrative Agent: Citibank, N.A., in such capacity, as the Administrative Agent under the Credit Agreement
		
	5.  Credit Agreement:
	Asset-Based Revolving Credit Agreement, dated as of April 3, 2017 (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “Credit Agreement”), by and among the Borrowers, the Guarantors party thereto, the Lenders and L/C Issuers party thereto from time to time and Citibank, N.A., as Administrative Agent.  Capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement.


6.  Assigned Interest:
	
							
	Assignor
	Assignee
	Facility Assigned
	Aggregate Amount of Commitment/ Loans for all Lenders
	Amount of Commitment/ Loans Assigned
	Percentage Assigned of Commitment/ Loans
	CUSIP Number

	 
	 
	 
	$
	$
	%
	 

	 
	 
	 
	$
	$
	%
	 

	 
	 
	 
	$
	$
	%
	 

	 
	 
	 
	 
	 
	 
	 




7.    Trade Date:            9
Effective Date:                  , 20     [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

9 To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date.



F-2
    








The terms set forth in this Assignment and Acceptance are hereby agreed to:
	
		
	ASSIGNOR
[NAME OF ASSIGNOR]

	By:
	 

	 
	Name:   

	 
	Title:   






	
		
	ASSIGNEE
[NAME OF ASSIGNEE]

	By:
	 

	 
	Name:   

	 
	Title:   






	
		
	[Consented to and] Accepted:10

	

CITIBANK, N.A., 

	as Administrative Agent[, L/C Issuer]11

	[and Swingline Lender]12

	By:
	 

	 
	Name:   

	 
	Title:   




	
		
	[Consented to and]:13

	

CONTURA ENERGY, INC., as the Borrower Representative

	By:
	 

	 
	Name:   

	 
	Title:   





10 To be added only if the consent of the Administrative Agent is required in the Credit Agreement by Section 11.06(b) or the definition of “Eligible Assignee.”
11 To be added only if the consent of the L/C Issuer is required in the Credit Agreement by Section 11.06(b) or the definition of “Eligible Assignee.”
12  To be added only if the consent of the Swingline Lender is required in the Credit Agreement by Section 11.06(b) or the definition of “Eligible Assignee.”
13 To be added only if the consent of the Borrowers is required in the Credit Agreement by Section 11.06(b) or the definition of “Eligible Assignee.”













ANNEX 1 TO ASSIGNMENT AND ACCEPTANCE
ASSET-BASED REVOLVING CREDIT AGREEMENT DATED AS OF APRIL 3, 2017,  
BY AND AMONG THE BORROWERS, THE LENDERS PARTY THERETO AND  
CITIBANK, N.A., AS ADMINISTRATIVE AGENT
STANDARD TERMS AND CONDITIONS
1.    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, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby and (iv) it is not a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrowers, any of their Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document, or (iv) the performance or observance by the Borrowers, any of their Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan 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 Acceptance and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all the requirements to be an assignee under Section 11.06 of the Credit Agreement (subject to such consents, if any, as may be required thereunder), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 6.01 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance and to purchase the Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Acceptance and to purchase the Assigned Interest, and (vii) if it is a Foreign Lender, attached to the Assignment and Acceptance 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 the 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 Loan Documents are required to be performed by it as a Lender.
2.    Payments.  From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of the principal amount outstanding, 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.  Notwithstanding the 


F-4
    







foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and after the Effective Date to the Assignee.
3.    General Provisions.  This Assignment and Acceptance shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns.  This Assignment and Acceptance 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 and Acceptance by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Acceptance.  This Assignment and Acceptance shall be governed by, and construed in accordance with, the law of the State of New York.


F-5
    








EXHIBIT G 
TO 
CREDIT AGREEMENT
FORM OF 
BORROWING BASE CERTIFICATE
Contura Energy, Inc. 
Borrowing Base Certificate  
Period ending    /    /        
Citibank, N.A. 
as Administrative Agent under the  
Credit Agreement referred to below  
388 Greenwich St. 7th Floor 
New York, NY 10013
Pursuant to Section 6.02(f) of the Asset-Based Revolving Credit Agreement, dated as of April 3, 2017 (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “Credit Agreement”), by and among Contura Energy, Inc., Contura Energy, LLC, Emerald Contura, LLC, Dickenson-Russell Contura, LLC, Nicholas Contura, LLC, Contura Mining Holding, LLC, Contura Coal Resources, LLC, Contura Wyoming Land, LLC, Contura Coal Sales, LLC, Contura Energy Services, LLC, Power Mountain Contura, LLC, Cumberland Contura, LLC, Contura Pennsylvania Land, LLC, Contura Freeport, LLC, Contura European Marketing, LLC, Paramont Contura, LLC, Contura Pennsylvania Terminal, LLC, Contura CAPP Land, LLC, Contura Coal West, LLC and Contura Terminal, LLC (collectively, the “Borrowers”), the Guarantors party thereto, the Lenders and L/C Issuers party thereto from time to time and Citibank, N.A., as Administrative Agent, Capitalized terms used but not defined herein shall have the meanings given to such terms in the Credit Agreement.  The undersigned, being a Responsible Officer of the Company, hereby certifies, in such capacity and not in any individual capacity that:
(a)    attached hereto as Exhibit A is a schedule of the Borrowing Base of the Borrowers as of the above date and the calculations made with respect thereto, and such attached information is true, complete and correct in all material respects as of the close of business on the period end set forth above, and
(b)    based on the schedule attached hereto as Exhibit A, the aggregate amount of the Borrowing Base as of such date is: $              .
[(c) attached hereto as Exhibit B is a calculation demonstrating compliance with the Payment Conditions set forth in the Credit Agreement.]
(d) attached hereto as Exhibit C is a list of all new surety arrangements entered into by any Loan Party since the delivery of the last Borrowing Base Certificate.
[SIGNATURE PAGES FOLLOW]




G-1
    








IN WITNESS WHEREOF, the Borrowers have caused this certificate to be executed and delivered by a duly authorized officer on the date first written above.
	
		
	CONTURA ENERGY, INC.,  
CONTURA ENERGY, LLC,  
EMERALD CONTURA, LLC,  
DICKENSON-RUSSELL CONTURA, LLC, NICHOLAS CONTURA, LLC,  
CONTURA MINING HOLDING, LLC, CONTURA COAL RESOURCES, LLC, CONTURA WYOMING LAND, LLC, CONTURA COAL SALES, LLC,  
CONTURA ENERGY SERVICES, LLC, POWER MOUNTAIN CONTURA, LLC, CUMBERLAND CONTURA, LLC, CONTURA PENNSYLVANIA LAND, LLC, CONTURA FREEPORT, LLC,  
CONTURA EUROPEAN MARKETING, LLC,  
PARAMONT CONTURA, LLC,  
CONTURA PENNSYLVANIA TERMINAL, LLC,  
CONTURA CAPP LAND, LLC,  
CONTURA COAL WEST, LLC and CONTURA TERMINAL, LLC

	By:
	 

	 
	Name:   

	 
	Title:   






[SIGNATURE PAGE TO BORROWING BASE CERTIFICATE]
    








CONTURA ENERGY 
FORM OF BORROWING BASE CERTIFICATE  
AS OF    , 20[ ]
	
		
	 
	Amount

	Gross billed receivables
	$   −

	Ineligible -
	$   −

	Over 60 days past due
	$   −

	Credits in past due
	$   −

	Cross-aging
	$   −

	Contra accounts
	$   −

	Chargebacks
	$   −

	A/R not assignable per contract
	$   −

	Foreign without credit insurance
	$   −

	Total ineligible
	$   −

	Total eligible
	$   −

	Advance rate
	 

	Available
	$   −

	Gross unbilled receivables
	$   −

	Ineligible -
	 

	A/R not assignable per contract
	$   −

	Total eligible
	$   −

	Advance rate
	 

	Available
	$   −

	Gross approved foreign receivables
	$   −

	Advance rate
	 

	Available
	$   −

	Gross raw coal inventory
	$   −

	Ineligible -
	 

	Shrinkage reserve
	$   −

	Total eligible
	$   −

	Advance rate
	$   −

	Available
	$   −

	Gross clean coal inventory
	$   −

	Ineligible -
	 

	Shrinkage reserve
	$   −

	FOB destination shipments
	$   −

	Total eligible
	$   −

	Advance rate
	 

	Available
	$   −

	Grand total available
	$   −

	Shipping reserve - Norfolk Southern
	 

	CSX Transportation
	$   −















	
		
	 
	Amount

	Three Rivers
	$   −

	Total
	$   −

	Other Reserves
	$   −

	Net availability
	$   −

	Delivered at Possession Inventory included in Eligible Inventory
	$   −
















EXHIBIT A TO BORROWING BASE CERTIFICATE 
BORROWING BASE CALCULATIONS


G-3
    








EXHIBIT B TO BORROWING BASE CERTIFICATE 
PAYMENT CONDITIONS


G-4
    








EXHIBIT C TO BORROWING BASE CERTIFICATE 
LIST OF NEW SURETY ARRANGEMENTS


G-5
    








EXHIBIT H 
TO 
CREDIT AGREEMENT
SECURITY AGREEMENT
[SEE ATTACHED]


H-1
    












[FORM OF] 
PLEDGE AND SECURITY AGREEMENT
among
CONTURA ENERGY, INC.,
each Subsidiary of Contura Energy, Inc. identified herein,
and
CITIBANK, N.A., 
as Collateral Agent 
Dated as of April 3, 2017
















TABLE OF CONTENTS
________________________________
PAGE
	
				
	SECTION 1.  DEFINED TERMS
	1
	


	1.1.
	Definitions
	1
	


	1.2.
	Other Definitional Provisions
	5
	


	SECTION 2.  GRANT OF SECURITY INTEREST
	5
	


	SECTION 3.  REPRESENTATIONS AND WARRANTIES
	7
	


	3.1.
	[Reserved]
	7
	


	3.2.
	Title; No Other Liens
	7
	


	3.3.
	Valid, Perfected First Priority Liens
	7
	


	3.4.
	Name; Jurisdiction of Organization, Etc
	7
	


	3.5.
	Investment Property
	8
	


	3.6.
	Commercial Tort Claims
	9
	


	3.7.
	Intellectual Property
	9
	


	3.8.
	Special Collateral
	9
	


	SECTION 4.  COVENANTS
	9
	


	4.1.
	[Reserved] ..............................................................Error! Bookmark not defined.
	 

	4.2.
	Delivery of and Control of Instruments, Chattel Paper, Negotiable Documents, Investment Property
	9
	


	4.3.
	Maintenance of Perfected Security Interest; Further Assurances
	10
	


	4.4.
	Investment Property
	10
	


	4.5.
	Voting and Other Rights with Respect to Pledged Securities
	11
	


	4.6.
	Commercial Tort Claims
	11
	


	4.7.
	Intellectual Property
	11
	


	4.8.
	Vehicles
	12
	


	4.9.
	Government Receivables
	12
	


	4.10.
	Deposit Accounts
	12
	


	SECTION 5.  REMEDIAL PROVISIONS
	13
	


	5.1.
	Proceeds to be Turned Over To Collateral Agent
	13
	


	5.2.
	Application of Proceeds
	13
	


	5.3.
	Code and Other Remedies
	13
	


	5.4.
	Certain Matters Relating to Receivables
	15
	


	5.5.
	Effect of Securities Laws
	15
	


	5.6.
	Deficiency
	15
	


	SECTION 6.  POWER OF ATTORNEY AND FURTHER ASSURANCES
	15
	


	6.1.
	Collateral Agent’s Appointment as Attorney-in-Fact, Etc.
	15
	


	6.2.
	Authorization of Financing Statements
	17
	


	SECTION 7.  LIEN ABSOLUTE
	17
	


	7.1.
	Security Interest Absolute
	17
	
















	
				
	7.2.
	Continuing Rights
	18
	


	SECTION 8.  THE COLLATERAL AGENT
	18
	


	8.1.
	Authority of
	18
	


	8.2.
	No Duty on the Part of Collateral Agent or Secured Parties
	18
	


	8.3.
	Appointment Pursuant to Credit Agreement
	18
	


	8.4.
	Hedge Bank
	19
	


	SECTION 9.  MISCELLANEOUS
	19
	


	9.1.
	Amendments in Writing
	19
	


	9.2.
	Notices
	19
	


	9.3.
	No Waiver by Course of Conduct; Cumulative Remedies
	19
	


	9.4.
	[Reserved] ..............................................................Error! Bookmark not defined.
	 

	9.5.
	Successors and Assigns
	20
	


	9.6.
	Set-Off
	20
	


	9.7.
	Counterparts
	20
	


	9.8.
	Severability
	20
	


	9.9.
	Section Headings
	21
	


	9.10.
	Integration
	21
	


	9.11.
	GOVERNING LAW
	21
	


	9.12.
	Submission to Jurisdiction; Waivers
	21
	


	9.13.
	Acknowledgments
	22
	


	9.14.
	WAIVER OF JURY TRIAL
	22
	


	9.15.
	Release.
	22
	


	9.16.
	Additional Grantors
	23
	





	
		
	SCHEDULE 1
	Subsidiary Parties

	SCHEDULE 2
	Description of Pledged Investment Property

	SCHEDULE 3
	Filings and Other Actions Required to Perfect Security Interests

	SCHEDULE 4
	Exact Legal Name, Location of Jurisdiction of Organization and Chief Executive Office

	SCHEDULE 5
	Commercial Tort Claims

	SCHEDULE 6
	United States Copyrights; Patents; Trademarks; Copyright Licenses

	SCHEDULE 7
	Notices

	ANNEX 1
	Assumption Agreement

	ANNEX 2
	Form of Uncertificated Securities Control Agreement

	EXHIBIT A-1
	Form of Copyright Security Agreement

	EXHIBIT A-2
	Form of Patent Security Agreement

	EXHIBIT A-3
	Form of Trademark Security Agreement


















PLEDGE AND SECURITY AGREEMENT, dated as of April 3, 2017 (the “Execution Date”), among Contura Energy, Inc., a Delaware corporation (the “Company”), each Subsidiary of the Borrower signatory hereto (together with any other Subsidiary of the Company that may become a party hereto as provided herein, each a “Subsidiary Party” and, together with the Company, the “Grantors”), and Citibank, N.A., as collateral agent for the Secured Parties (as herein defined) (in such capacity, the “Collateral Agent”).
W I T N E S S E T H:
WHEREAS, the Grantors have entered into that certain Asset-Based Revolving Credit Agreement dated as of the date hereof, among the Grantors, as Borrowers, the lenders from time to time party thereto and Citibank, N.A., as administrative agent (the “Administrative Agent”) (as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”);
WHEREAS, in order to induce the Administrative Agent, the Collateral Agent, the Lenders and the L/C Issuers to enter into the Credit Agreement and to extend credit to the Borrowers, the Grantors have agreed to grant, pursuant to the terms of this Agreement, a continuing security interest in and to the Collateral to the Collateral Agent for the ratable benefit of the Secured Parties to secure the Obligations.
WHEREAS, the Company and each other Grantor are engaged in related businesses, and each Grantor will derive substantial direct and indirect benefit from the transactions contemplated by the Credit Agreement; and
NOW, THEREFORE, in consideration of the premises and the agreements herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each Grantor hereby agrees with the Collateral Agent, for the benefit of the Secured Parties, as follows:
SECTION 1.  DEFINED TERMS
1.1.    Definitions.  (a) Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement, and the following terms which are defined in the UCC are used herein as so defined (and if defined in more than one article of the UCC shall have the meaning specified in Article 9 thereof): Accounts, As-Extracted Collateral, Commercial Tort Claims, Certificated Security, Chattel Paper, Commodity Contract, Commodity Account, Documents, Equipment, Farm Products, Fixtures, General Intangibles, Goods, Health Care Insurance Receivable, Instruments, Inventory, Letter of Credit Rights, Manufactured Homes, Money, Payment Intangibles, Securities Account, Security, Security Entitlement, Supporting Obligations, Tangible Chattel Paper and Uncertificated Security.
(b)    The following terms shall have the following meanings: “Administrative Agent”: as set forth in the recitals hereto.
“Agreement”: this Pledge and Security Agreement, as the same may be amended, restated, supplemented or otherwise modified from time to time.
“After-Acquired Intellectual Property”: as set forth in Section 4.7(c).
“Collateral”: as set forth in Section 2.
“Collateral Account”: any collateral account established by the Collateral Agent as provided in Section 5.1 or Section 5.4.











“Collateral Agent”: as set forth in the preamble hereto.
“Company”: as set forth in the preamble hereto.
“Copyrights”: (a) all copyrights, whether registered or unregistered and whether published or unpublished, all registrations and recordings thereof, and all applications therefor, and (b) all extensions, renewals and restorations thereof and the right to obtain the same.
“Copyright Licenses”: any written agreement to which any Grantor is a party (whether as licensor or licensee), granting any right to or under any Copyright, including providing any covenant not to sue for infringement or violation of a Copyright.
“Credit Agreement”: as set forth in the recitals hereto.
“Deposit Account” shall mean all “deposit accounts” as defined in Article 9 of the UCC and all other accounts maintained with any financial institution (other than Securities Accounts or Commodity Accounts), and shall include, without limitation, all of the accounts listed on Schedule 2 hereto under the heading “Deposit Accounts” together, in each case, with all funds held therein and all certificates or instruments representing any of the foregoing.
“Execution Date”: as set forth in the preamble hereto.
“Insurance”: all insurance policies covering any or all of the Collateral (regardless of whether the Collateral Agent is the a loss payee thereof).
“Intellectual Property”: in all jurisdictions worldwide, Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks and Trademark Licenses, and Trade Secrets, and all rights to sue at law or in equity for any infringement, dilution, misappropriation, violation or other impairment thereof, including the right to receive all past, present and future damages therefrom and all license fees, royalties, income payments and other proceeds therefrom now or hereafter due or payable with respect thereto.
“Investment Property”: the collective reference to (a) all “investment property” as such term is defined in Section 9-102(a)(49) of the UCC (including, without limitation, all Certificated Securities and Uncertificated Securities, all Security Entitlements, all Securities Accounts, all Commodity Contracts and all Commodity Accounts), (b) all security entitlements, in the case of any United States Treasury book-entry securities, as defined in 31 C.F.R.  section 357.2, or, in the case of any United States federal agency book-entry securities, as defined in the corresponding United States federal regulations governing such book-entry securities, and (c) whether or not constituting “investment property” as so defined, all Pledged Notes, all Pledged Equity Interests, all Pledged Security Entitlements and all Pledged Commodity Contracts.
“Issuer”: each issuer of any Investment Property.
“Patents”: (a) all patentable inventions and designs, letters patent, certificates of invention and similar industrial property rights and all reissues and extensions thereof, (b) all related applications and all divisions, continuations and continuations-in-part thereof and reexaminations thereof and (c) all rights to obtain any reissues or extensions of the foregoing.
“Patent License”: all written agreements providing for the grant by or to any Grantor of any right to or under a Patent or otherwise providing for a covenant not to sue for infringement or other violation of a Patent.











“Pledged Commodity Contracts”: all Commodity Contracts, to which any Grantor is party from time to time.
“Pledged Debt Securities”: all debt securities now owned or hereafter acquired by any Grantor together with any other certificates, options, rights or security entitlements of any nature whatsoever in respect of the debt securities of any Person that may be issued or granted to, or held by, any Grantor while this Agreement is in effect.
“Pledged Equity Interests”: all Equity Interests, and shall include Pledged LLC Interests, Pledged Partnership Interests and Pledged Stock, now owned or hereafter acquired by any Grantor.
“Pledged LLC Interests”: all membership interests and other interests now owned or hereafter acquired by any Grantor in any limited liability company including, without limitation, all limited liability company interests listed on Schedule 2 hereto under the heading “Pledged LLC Interests” and the certificates, if any, representing such limited liability company interests and any interest of such Grantor on the books and records of such limited liability company and any securities entitlements relating thereto and all dividends, distributions, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such limited liability company interests, in each case, constituting membership or other interests in any limited liability company and any other warrant, right or option or other agreement to acquire any of the foregoing and all related management rights, all voting rights, any interest in any capital account of a member in such limited liability company, and all rights as and to become a member of the limited liability company.
“Pledged Notes”: all promissory notes now owned or hereafter acquired by any Grantor including, those listed on Schedule 2 and all other promissory notes issued to or held by any Grantor (other than promissory notes issued in connection with extensions of trade credit by any Grantor in the ordinary course of business).
“Pledged Partnership Interests”: all partnership interests and other interests now owned or hereafter acquired by any Grantor in any general partnership, limited partnership, limited liability partnership or other partnership including, without limitation, all partnership interests listed on Schedule 2 hereto under the heading “Pledged Partnership Interests” and the certificates, if any, representing such partnership interests, and any interest of such Grantor on the books and records of such partnership and all dividends, distributions, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such partnership interests, in each case, constituting membership or other interests in any general partnership, limited partnership, limited liability partnership or other partnership and any other warrant, right or option to acquire any of the foregoing and all management rights, all voting rights, any interest in any capital account of a partner in such partnership, and all rights as and to become a partner of such partnership.
“Pledged Securities”: the collective reference to the Pledged Debt Securities, the Pledged Notes and the Pledged Equity Interests regardless of whether constituting Securities under the UCC.
“Pledged Security Entitlements”: all security entitlements of any Grantor.
“Pledged Stock”: all shares of capital stock now owned or hereafter acquired by such Grantor, including, without limitation, all shares of capital stock described on Schedule 2 hereto under the heading “Pledged Stock”, and the certificates, if any, representing such shares and any interest of such Grantor in the entries on the books of the issuer of such shares and all dividends, distributions, warrants, rights, options, instruments, securities and other property from time to time received, receivable or otherwise distributed in 











respect of or in exchange for any or all of such shares, constituting capital stock and any other warrant, right or option to acquire any of the foregoing.
“Proceeds”: all “proceeds” as such term is defined in Section 9-102(a)(64) of the UCC and, in any event, shall include, without limitation, all dividends or other income from the Pledged Securities, collections thereon and distributions or payments with respect thereto.
“Receivable”: all Accounts and any other any right to payment for goods or other property sold, leased, licensed or otherwise disposed of or for services rendered, whether or not such right is evidenced by an Instrument or Chattel Paper or classified as a Payment Intangible and whether or not it has been earned by performance.  References herein to Receivables shall include any Supporting Obligation or collateral securing such Receivable.
“Securities Act”: the Securities Act of 1933, as amended.
“Trademarks”: (a) all trademarks, trade names, service marks, corporate names, business names, Internet domain names and URLs and other indicia of source or business identifiers, whether registered or unregistered and all goodwill symbolized by or associated with any of the foregoing, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all applications for registration thereof, and (b) all renewals and extensions thereof and the right to obtain all renewals and extensions thereof.
“Trademark License”: any written agreement providing for the grant by or to any Grantor of any right in or to any Trademark or otherwise providing for a covenant not to sue for infringement, dilution, or other violation of any Trademark or permitting co- existence with respect to a Trademark.
“Trade Secrets”: all trade secrets and all confidential and proprietary information, including know-how, manufacturing and production processes and techniques, inventions, research and development information, technical data, financial, marketing and business data, pricing and cost information, business and marketing plans, and customer and supplier lists and confidential information.
“UCC”: the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that in the event that, by reason of mandatory provisions of law, any or all of the perfection or priority of, or remedies with respect to, any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions hereof relating to such perfection, priority or remedies.
“Vehicles”: all cars, trucks, trailers, construction and earth moving equipment and other Equipment of any nature, in each case covered by a certificate of title law of any US jurisdiction and all tires and other appurtenances to any of the foregoing.
1.2.    Other Definitional Provisions.  (a) Where the context requires, terms relating to the Collateral or any part thereof, when used in relation to a Grantor, shall refer to such Grantor’s Collateral or the relevant part thereof.
(b)    The interpretative provisions of Section 1.02 of the Credit Agreement shall be incorporated herein mutatis mutandis.
(c)    All references herein to provisions of the UCC shall include all successor provisions under any subsequent version or amendment to any Article of the UCC.











SECTION 2.  GRANT OF SECURITY INTEREST
(a)    Each Grantor hereby grants to the Collateral Agent and its successors and permitted assigns, for the benefit of the Secured Parties, a continuing security interest in all of the following property, in each case, wherever located and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (collectively, the “Collateral”), as collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations:
(i)    all Accounts, including Receivables;
(ii)    all As-Extracted Collateral;
(iii)    all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(iv)    all Deposit Accounts;
(v)    all Documents;
(vi)    all Equipment;
(vii)    all Fixtures;
(viii)    all General Intangibles;
(ix)    all Instruments;
(x)    all Insurance;
(xi)    all Intellectual Property;
(xii)    all Inventory (including, without limitation, Coal Inventory);
(xiii)    all Investment Property;
(xiv)    all Letter of Credit Rights;
(xv)    all Money, cash and cash equivalents;
(xvi)    all Pledged Equity Interests;
(xvii)    all Vehicles;
(xviii)    all Collateral Accounts;
(xix)    all Goods not otherwise described above;
(xx)    all Commercial Tort Claims now or hereinafter described, including as set forth on Schedule 5 or for which documentation is provided in accordance with Section 4.6;











(xxi)    all books and records pertaining to the Collateral; and
(xxii)    to the extent not otherwise included, all other property of such Grantor and all Proceeds, products, accessions, rents and profits of any and all of the foregoing and all collateral security, Supporting Obligations and guarantees given by any Person with respect to any of the foregoing.
(b)    Notwithstanding any of the other provisions set forth in this Agreement or in any other Loan Document, this Agreement shall not constitute a grant of a security interest in any Excluded Assets and none of the Excluded Assets shall constitute Collateral.
SECTION 3.  REPRESENTATIONS AND WARRANTIES
To induce the Collateral Agent to enter into this Agreement and to induce each other Secured Party to make their respective extensions of credit to the Borrower under the Credit Agreement, each Grantor hereby represents and warrants to each of the Secured Parties that:
3.1.    [Reserved].
3.2.    Title; No Other Liens.  Each Grantor owns each item of the Collateral free and clear of any and all Liens or claims, including, without limitation, Liens arising as a result of such Grantor becoming bound (as a result of merger or otherwise) as grantor under a security agreement or pledge agreement entered into by another Person, except, in each case, for Permitted Liens.
3.3.    Valid, Perfected First Priority Liens.  The security interests granted pursuant to this Agreement constitute a legal and valid security interest in favor of the Collateral Agent, for the benefit of the Secured Parties, securing the payment and performance of each Grantor’s Obligations and upon completion of the filings and other actions specified on Schedule 3 (all of which, in the case of all filings and other documents referred to on such Schedule, may be filed by the Collateral Agent at any time), will constitute fully perfected security interests in all of the Collateral prior to all other Liens on the Collateral except Permitted Liens.  To the extent requested by the Collateral Agent, each Grantor has taken all actions necessary, including without limitation those specified in Section 4.2 to (i) establish the Collateral Agent’s “control” (within the meanings of Sections 8-106 and 9-106 of the UCC) over any portion of the Collateral constituting Certificated Securities or Uncertificated Securities or (ii) establish the Collateral Agent’s “control” (within the meaning of Section 9-104 of the UCC) over all Deposit Accounts (other than Excluded Accounts).
3.4.    Name; Jurisdiction of Organization, Etc.  As of the Execution Date, (a) each Grantor’s exact legal name (as indicated on the public record of such Grantor’s jurisdiction of formation or organization), jurisdiction of organization and the location of each Grantor’s chief executive office or sole place of business are specified on Schedule 4; (b) each Grantor is organized solely under the law of the jurisdiction so specified and has not filed any certificates of domestication, transfer or continuance in any other jurisdiction; (c) except as specified on Schedule 4, it has not changed its name, jurisdiction of organization, chief executive office or sole place of business (if applicable) or its corporate structure in any way (e.g., by merger, consolidation, change in corporate form or otherwise) within the past four months; and (d) unless otherwise stated on Schedule 4, no Grantor is a transmitting utility as defined in UCC § 9- 102(a)(80).
3.5.    Investment Property.  As of the Execution Date:
(a)    Schedule 2 hereto sets forth under the headings “Pledged Stock”, “Pledged LLC Interests” and “Pledged Partnership Interests”, respectively, all of the Pledged Equity Interests owned by any Grantor 











and required to be pledged hereunder and such Pledged Equity Interests constitute the percentage of issued and outstanding shares of stock, percentage of membership interests or percentage of partnership interests of the respective issuers thereof indicated on such Schedule.  Schedule 2 hereto sets forth under the headings “Pledged Debt Securities” or “Pledged Notes” all of the Pledged Debt Securities and Pledged Notes (in each case with a value in excess of $3,000,000, individually) owned by any Grantor and required to be pledged hereunder, and all of such Pledged Debt Securities and Pledged Notes, to the knowledge of such Grantor, are the legal, valid and binding obligation of the issuers thereof enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other Laws relating to or affecting creditors' rights generally, general principles of equity, regardless of whether considered in a proceeding in equity or at law and an implied covenant of good faith and fair dealing;
(b)    Schedule 2 hereto sets forth under the headings “Securities Accounts,” “Commodities Accounts,” and “Deposit Accounts,” respectively, all of the Securities Accounts, Commodities Accounts and Deposit Accounts in which each Grantor has an interest (other than, in each case, Excluded Accounts).  Each Grantor is the sole entitlement holder or customer of each such account, and such Grantor has not consented to, and is not otherwise aware of, any Person (other than the Collateral Agent pursuant hereto) having “control” (within the meanings of Sections 8-106, 9-106 and 9-104 of the UCC) over, or any other interest in, any such Securities Account, Commodity Account or Deposit Account or any securities, commodities or other property credited thereto;
(c)    All of the shares of Pledged Equity Interests required to be pledged by such Grantor hereunder constitute all of the issued and outstanding shares of all classes of the Equity Interests of each Issuer owned by such Grantor (other than any Excluded Assets);
(d)    All of the shares of Pledged Equity Interests required to be pledged hereunder have been duly and validly issued and (other than such Pledged Equity Interests consisting of limited liability or partnership interests which cannot be fully paid or which cannot be nonassessable) are fully paid and nonassessable;
(e)    Except as set forth on Schedule 2, there are no outstanding warrants, options or other rights to purchase, or shareholder, voting trust or similar agreements outstanding with respect to, or property that is convertible into, or that requires the issuance or sale of, any Pledged Equity Interest required to be pledged hereunder;
(f)    Except as set forth on Schedule 2, there are no limited liability company or limited partnership interests required to be pledged hereunder that constitute a “security” within the meaning of Article 8 of the UCC.
3.6.    Commercial Tort Claims As of the Execution Date, all Commercial Tort Claims in an amount (taking the greater of the aggregate claimed damages thereunder or the reasonably estimated value thereof) of $3,000,000 or more of each Grantor in existence on the Execution Date are described on Schedule 5 hereto.
3.7.    Intellectual Property As of the Execution Date, (a) Schedule 6 sets forth, for each Grantor, a true and accurate list of: (i) all registrations and applications for registration of any United States Copyright owned by such Grantor; (ii) all United States Patents and applications for Patents owned by such Grantor; and (iii) all registrations and applications in connection with United States Trademarks owned by such Grantor, each of which is required to be pledged hereunder; (b) except as set forth on Schedule 6, such Grantor is the sole and exclusive owner of the entire and unencumbered right, title and interest in and to such listed Intellectual Property, as well as any other material Intellectual Property owned by such Grantor, 











in each case free and clear of all Liens, claims and exclusive licenses, except for Permitted Liens; (c) except as set forth on Schedule 6, such Grantor has not made a previous assignment, sale, transfer, exclusive license, or similar arrangement constituting a present or future assignment, sale, transfer, exclusive license or similar arrangement of any material Intellectual Property that has not been terminated or released; and (d) Schedule 6 lists all exclusive, inbound Copyright Licenses held by such Grantor pursuant to which such Grantor has been granted rights in or to any registered United States Copyrights.
3.8.    Special Collateral.  As of the Execution Date, none of the Collateral constitutes, or is the Proceeds of, (a) Farm Products, (b) Manufactured Homes, (c) Health-Care Insurance Receivables, (d) timber to be cut, or (e) aircraft, engines, satellites, ships or railroad rolling stock, in each case with a value of individually greater than $3,000,000.
SECTION 4.  COVENANTS
Each Grantor covenants and agrees with the Secured Parties that, from and after the date of this Agreement until the Payment in Full of the Obligations shall have occurred:
4.1.  [Reserved].  Delivery of and Control of Instruments, Chattel Paper, Negotiable Documents, Investment Property.  (a) If any of the Collateral (with a value in excess of $3,000,000, individually, for Collateral other than Pledged Equity Interests) becomes evidenced or represented by any Instrument, Certificated Security, Negotiable Document or Tangible Chattel Paper, such Instrument, Certificated Security, Negotiable Document or Tangible Chattel Paper shall be delivered to the Collateral Agent (or its bailee pursuant to the terms of the Term Loan Intercreditor Agreement) within 30 days of the date that the financial statements referred to in Section 6.01(a) and Section 6.01(b) of the Credit Agreement are required to be delivered (or a later date to which the Administrative Agent agrees), duly endorsed in a manner reasonably satisfactory to the Collateral Agent, to be held as Collateral pursuant to this Agreement.
(b) If any of the Pledged Equity Interests required to be pledged hereunder becomes evidenced or represented by an Uncertificated Security, the Grantors shall within 30 days of the date that the financial statements referred to in Section 6.01(a) and Section 6.01(b) of the Credit Agreement are required to be delivered (or a later date to which the Administrative Agent agrees), cause the relevant Issuer either (i) to register the Collateral Agent as the registered owner of such Uncertificated Security, upon original issue or registration of transfer, or (ii) to agree in writing with the relevant Grantor and the Collateral Agent that the relevant Issuer will, upon an Event of Default, comply with instructions with respect to such Uncertificated Security originated by the Collateral Agent without further consent of the relevant Grantor, such agreement to be in substantially the form of Annex 2 or in form and substance reasonably satisfactory to the Collateral Agent.
4.3.    Maintenance of Perfected Security Interest; Further Assurances.  (a) Each Grantor shall maintain the security interest created by this Agreement as a perfected security interest having at least the priority described in Section 3.3 and shall take all reasonable actions to defend such security interest against the claims and demands of all Persons whomsoever (subject to Permitted Liens permitted to exist on the Collateral under Section 3.3).
(b) At any time and from time to time, upon the written request of the Collateral Agent, and at the sole expense of such Grantor, such Grantor shall promptly and duly authorize, execute and deliver, and have recorded, such further instruments and documents and take such further actions as the Collateral Agent may reasonably request for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted, including, without limitation, (i) the filing of any financing or continuation statements under the Uniform Commercial Code (or other similar laws) in effect in any jurisdiction with 











respect to the security interests created hereby and (ii) in the case of Investment Property, Deposit Accounts and any other relevant Collateral, taking any actions necessary to enable the Collateral Agent to obtain “control” (within the meaning of the applicable Uniform Commercial Code) with respect thereto to the extent required hereunder, including without limitation, executing and delivering and causing the relevant depositary bank or securities intermediary to execute and deliver a control agreement in form and substance reasonably satisfactory to the Collateral Agent.
4.4.    Investment Property.  If a Grantor shall become entitled to receive or shall receive any stock or other ownership certificate (including, without limitation, any certificate representing a stock dividend or a distribution in connection with any reclassification, increase or reduction of capital or any certificate issued in connection with any reorganization), or option or rights in respect of the Pledged Equity Interest of any Issuer required to be pledged hereunder, whether in addition to, in substitution of, as a conversion of, or in exchange for, any shares of or other ownership interests in such Pledged Equity Interests, or otherwise in respect thereof, such Grantor shall accept the same as the agent of the Secured Parties, hold the same in trust for the Secured Parties and deliver the same forthwith to the Collateral Agent (or its bailee pursuant to the terms of the Term Loan Intercreditor Agreement) within 30 days of the date that the financial statements referred to in Section 6.01(a) and Section 6.01(b) of the Credit Agreement are required to be delivered (or a later date to which the Administrative Agent agrees), in the exact form received, duly endorsed by such Grantor to the Collateral Agent, if required, together with an undated stock power covering such certificate duly executed in blank by such Grantor to be held by the Collateral Agent (or its bailee pursuant to the terms of the Term Loan Intercreditor Agreement), subject to the terms hereof, as additional collateral security for the Obligations.  If an Event of Default shall have occurred and be continuing and any sums of money or property so paid or distributed in respect of the Pledged Equity Interests required to be pledged hereunder shall be received by such Grantor, such Grantor shall, until such money or property is paid or delivered to the Collateral Agent, hold such money or property in trust for the Secured Parties, segregated from other funds of such Grantor, as additional collateral security for the Obligations.
4.5.    Voting and Other Rights with Respect to Pledged Securities.  Unless an Event of Default shall have occurred and be continuing and the relevant Grantor shall have received written notice from the Collateral Agent, such Grantor shall be permitted to receive all dividends and distributions paid in respect of the Pledged Equity Interests required to be pledged hereunder and all payments made in respect of the Pledged Notes or Pledged Debt Securities required to be pledged hereunder, to the extent permitted by the Credit Agreement and to exercise all voting and corporate rights with respect to such Pledged Equity Interests.  If an Event of Default shall occur and be continuing and the relevant Grantor shall have received written notice from the Collateral Agent: (i) all rights of the relevant Grantor to exercise or refrain from exercising the voting and other consensual rights with respect to Pledged Securities required to be pledged hereunder, which it would otherwise be entitled to exercise shall cease and all such rights shall thereupon become vested in the Collateral Agent who shall thereupon have the sole right, but shall be under no obligation, to exercise or refrain from exercising such voting and other consensual rights, (ii) the Collateral Agent shall have the right to transfer all or any portion of such Pledged Securities to its name or the name of its nominee or agent, (iii) the Collateral Agent shall have the right at any time to exchange any certificates or instruments representing any Pledged Securities required to be pledged hereunder for certificates or instruments of smaller or larger denominations and (iv) in order to permit the Collateral Agent to exercise the voting and other consensual rights which it may be entitled to exercise pursuant hereto and to receive all dividends and other distributions which it may be entitled to receive hereunder, the relevant Grantor shall promptly execute and deliver (or cause to be executed and delivered) to the Collateral Agent all proxies, dividend payment orders and other instruments as the Collateral Agent may from time to time reasonably request and the relevant Grantor acknowledges that the Collateral Agent may utilize the power of attorney set forth herein.  Each Grantor hereby authorizes and instructs each Issuer of Pledged Securities required to be pledged hereunder 











to (i) comply with any instruction received by it from the Collateral Agent in writing that (x) states that an Event of Default has occurred and is continuing and (y) is otherwise in accordance with the terms of this Agreement, without any other or further instructions from the relevant Grantor, and each Grantor agrees that the Issuer shall be fully protected in so complying, and (ii) if an Event of Default shall have occurred and be continuing and any Issuer shall have received notice from the Collateral Agent, pay any dividends or other payments with respect to such Pledged Securities directly to the Collateral Agent.
4.6.    Commercial Tort Claims.  If any Grantor shall at any time after the date of this Agreement acquire a Commercial Tort Claim in an amount (taking the greater of the aggregate claimed damages thereunder or the reasonably estimated value thereof) of $3,000,000 or more, such Grantor shall within 30 days of the date that the financial statements referred to in Section 6.01(a) and Section 6.01(b) of the Credit Agreement are required to be delivered (or a later date to which the Administrative Agent agrees), notify the Collateral Agent thereof in a writing signed by such Grantor and shall promptly thereafter grant to the Collateral Agent a security interest therein and in the proceeds thereof, all upon the terms of this Agreement.
4.7.    Intellectual Property.  (a) Such Grantor will not, without the prior written consent of the Collateral Agent, do any act or omit to do any act whereby any material Intellectual Property may lapse, become abandoned, cancelled, dedicated to the public, forfeited, or otherwise impaired, or abandon any application or any right to file an application for a Copyright, Patent, or Trademark listed in Schedule 6, except, in each case where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
(b)    Such Grantor agrees that, should it hereafter (i) obtain an ownership interest in any item of Intellectual Property, (ii) obtain an exclusive license to any Copyrights, (iii) (either by itself or through any agent, employee, licensee, or designee) file any application for the registration or issuance of any Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office, or any similar office or agency in any other country or in any political subdivision of any of the foregoing; or (iv) file a Statement of Use or an Amendment to Allege Use with respect to any “intent-to-use” Trademark application (the items in clauses (i), (ii) (iii) and (iv), collectively, the “After-Acquired Intellectual Property”), then the provisions of Section 2 shall automatically apply thereto and such Grantor shall comply with the terms of the Credit Agreement, including by executing IP Security Agreements with respect to any United States After-Acquired Intellectual Property in order to record the security interest granted herein to the Collateral Agent for the benefit of the Secured Parties with the United States Patent and Trademark Office or the United States Copyright Office, as applicable.
(c)    In the event that any material Intellectual Property owned by any Grantor is infringed, misappropriated, diluted or otherwise violated by another Person, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, such Grantor shall promptly take all actions (as determined in its own reasonable business judgment) to stop such infringement, misappropriation, dilution or other violation and protect its rights in such material Intellectual Property including, but not limited to, if so determined in its own reasonable business judgment, the initiation of a suit for injunctive relief and to recover damages.
4.8.    Vehicles.  With respect to any Vehicle required to be pledged hereunder, upon the reasonable request of the Collateral Agent after an Event of Default has occurred and is continuing, all applications for certificates of title or ownership indicating the Collateral Agent’s first priority security interest in the Vehicle covered by such certificate, and any other necessary documentation, shall be filed in each office in each jurisdiction which the Collateral Agent shall deem advisable to perfect its security interests in such Vehicles.











4.9.    Government Receivables.  If any Grantor shall at any time after the date of this Agreement acquire or become the beneficiary of Receivables required to the pledged hereunder in excess of $3,000,000 in the aggregate in respect of which the account debtor is a Governmental Authority, such Grantor shall (i) within 30 days of the date that the financial statements referred to in Section 6.01(a) and Section 6.01(b) of the Credit Agreement are required to be delivered (or a later date to which the Administrative Agent agrees), (ii) upon the reasonable request of the Collateral Agent, shall take any necessary steps to perfect the Lien of the Collateral Agent for the benefit of the Secured Parties therein, and (iii) make such Lien enforceable against the account debtor.
4.10.    Deposit Accounts.  Each Grantor shall deliver to the Collateral Agent (i) within 60 days of the Execution Date (or such longer period as may be agreed by the Collateral Agent) an executed deposit account control agreement in form and substance reasonably satisfactory to the Collateral Agent, providing for springing cash dominion upon an Event of Default, over all Deposit Accounts of the Grantors other than Excluded Accounts and (ii) within 30 days of the date that the financial statements referred to in Section 6.01(a) and Section 6.01(b) of the Credit Agreement are required to be delivered (or a later date to which the Administrative Agent agrees), cause any new Deposit Account (other than Excluded Accounts) to be subject to such control agreement or another control agreement in form and substance reasonably satisfactory to the Collateral Agent.
SECTION 5.  REMEDIAL PROVISIONS
5.1.    Proceeds to be Turned Over To Collateral Agent.  If an Event of Default shall occur and be continuing, all Proceeds received by any Grantor consisting of cash, cash equivalents, checks and other near-cash items shall be held by such Grantor in trust for the Secured Parties, segregated from other funds of such Grantor, and shall, forthwith upon request by the Collateral Agent, be turned over to the Collateral Agent in the exact form received by such Grantor (duly endorsed by such Grantor to the Collateral Agent, if required).  All Proceeds received by the Collateral Agent hereunder shall be held by the Collateral Agent in a Collateral Account maintained under its sole dominion and control.  All Proceeds while held by the Collateral Agent in a Collateral Account (or by such Grantor in trust for the Secured Parties) shall continue to be held as collateral security for all the Obligations and shall not constitute payment thereof until applied as provided in Section 5.2.
5.2.    Application of Proceeds.  All proceeds received by the Collateral Agent in respect of any sale of, any collection from, or other realization upon all or any part of the Collateral shall be applied by the Collateral Agent as provided in Section 8.04 of the Credit Agreement.  Any proceeds not applied shall be held by the Collateral Agent as Collateral.
5.3.    Code and Other Remedies.  (a) If an Event of Default shall occur and be continuing, the Collateral Agent, on behalf of the Secured Parties, may exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the UCC (whether or not the UCC applies to the affected Collateral) and all rights under any other applicable law or in equity.  Without limiting the generality of the foregoing, the Collateral Agent, without demand of performance or other demand, defense, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, presentments, protests, defenses, advertisements and notices are hereby waived), may in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, 











at any exchange, broker’s board or office of any Secured Party, on the internet or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk.  The Collateral Agent may store, repair or recondition any Collateral or otherwise prepare any Collateral for disposal in the manner and to the extent that the Collateral Agent deems appropriate.  Each Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold or to become the licensor of all or any such Collateral, free of any right or equity of redemption in any Grantor, which right or equity is hereby waived and released.  For purposes of bidding and making settlement or payment of the purchase price for all or a portion of the Collateral sold at any such sale made in accordance with the UCC or other applicable laws, including, without limitation, the Bankruptcy Code of the United States, the Collateral Agent, as agent for and representative of the Secured Parties in accordance with the Credit Agreement, shall be entitled to credit bid and use and apply the Obligations (or any portion thereof) as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale, such amount to be apportioned ratably to the Obligations of the Secured Parties in accordance with their pro rata share of such Obligations.  Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of each Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.  Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days’ notice to such Grantor of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification.  The Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given.  The Collateral Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.  The Collateral Agent may sell the Collateral without giving any warranties as to the Collateral.  The Collateral Agent may specifically disclaim or modify any warranties of title or the like.  The foregoing will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral.  Each Grantor agrees that it would not be commercially unreasonable for the Collateral Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets.  Each Grantor hereby waives any claims against the Collateral Agent arising by reason of the fact that the price at which any Collateral may have been sold at such a private sale was less than the price which might have been obtained at a public sale, even if the Collateral Agent accepts the first offer received and does not offer such Collateral to more than one offeree.  Each Grantor further agrees, at the Collateral Agent’s request, to assemble the Collateral and make it available to the Collateral Agent at places which the Collateral Agent shall reasonably select, whether at such Grantor’s premises or elsewhere.  The Collateral Agent shall have the right to enter onto the property where any Collateral is located without any obligation to pay rent and take possession thereof with or without judicial process.  The Collateral Agent shall have no obligation to marshal any of the Collateral.
(b) The Collateral Agent shall deduct from such Proceeds all reasonable costs and expenses of every kind incurred in connection with the exercise of its rights and remedies against the Collateral or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the Secured Parties hereunder, including, without limitation, reasonable and documented attorneys’ fees and disbursements.  Any net Proceeds remaining after such deductions shall be applied in accordance with Section 5.2.  If the Collateral Agent sells any of the Collateral upon credit, the relevant Grantor will be credited only with payments actually made by the purchaser and received by the Collateral Agent.  In the event the purchaser fails to pay for the Collateral, the Collateral Agent may resell the Collateral and the relevant Grantor shall be credited with proceeds of the sale.  To the extent permitted by applicable law, each Grantor waives all 











claims, damages and demands it may acquire against any Secured Party arising out of the exercise by it or them of any rights hereunder.
5.4.    Certain Matters Relating to Receivables.  The Collateral Agent hereby authorizes each Grantor to collect such Grantor’s Receivables included in the Collateral; provided, however, that the Collateral Agent may curtail or terminate said authority at any time after the occurrence and during the continuance of an Event of Default.  If required by the Collateral Agent at any time after the occurrence and during the continuance of an Event of Default, any payments of Receivables included in the Collateral, when collected by any Grantor, (i) shall forthwith (and, in any event, within two (2) Business Days) be deposited by such Grantor in the exact form received, duly endorsed by such Grantor to the Collateral Agent if required, in a Collateral Account maintained under the sole dominion and control of the Collateral Agent, subject to withdrawal by the Collateral Agent for the account of the Secured Parties only as provided in Section 5.2, and (ii) until so turned over, shall be held by such Grantor in trust for the Secured Parties, segregated from other funds of such Grantor.
For the avoidance of doubt, it is understood that the provisions of Section 5.4 shall only be operative when an Event of Default has occurred and is continuing.
5.5.    Effect of Securities Laws.  Each Grantor recognizes that the Collateral Agent may be unable to effect a public sale of any or all of the Pledged Equity Interests or Pledged Debt Securities by reason of certain prohibitions contained in the Securities Act and applicable state securities laws or otherwise, and may be compelled to resort to one or more private sales thereof to a restricted group of purchasers which will be obliged to agree, among other things, to acquire such securities for their own account for investment and not with a view to the distribution or resale thereof.  Each Grantor acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner.  The Collateral Agent shall be under no obligation to delay a sale of any of the Pledged Equity Interests or the Pledged Debt Securities for the period of time necessary to permit the Issuer thereof to register such securities for public sale under the Securities Act, or under applicable state securities laws, even if the Issuer would agree to do so.
5.6.    Deficiency.  Each Grantor shall remain liable for any deficiency if the proceeds of any sale or other disposition of the Collateral are insufficient to pay its Obligations and the reasonable and documented fees and disbursements of any attorneys employed by any Secured Party to collect such deficiency.
SECTION 6.  POWER OF ATTORNEY AND FURTHER ASSURANCES
6.1.    Collateral Agent’s Appointment as Attorney-in-Fact, Etc.  (a) Each Grantor hereby irrevocably constitutes and appoints the Collateral Agent and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Grantor and in the name of such Grantor or in its own name, for the purpose of carrying out the terms of this Agreement, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Agreement, and, without limiting the generality of the foregoing, each Grantor hereby gives the Collateral Agent the power and right, on behalf of such Grantor, without notice to or assent by such Grantor, to do any or all of the following:
(i)    in the name of such Grantor or its own name, or otherwise, take possession of and endorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of moneys with respect to any Collateral and file any claim or take any other action or proceeding in any court of law or equity or 











otherwise deemed appropriate by the Collateral Agent for the purpose of collecting any and all such moneys due with respect to any other Collateral whenever payable;
(ii)    pay or discharge taxes and Liens levied or placed on or threatened against the Collateral, effect any repairs or purchase any insurance called for by the terms of this Agreement or the other Loan Documents and pay all or any part of the premiums therefor and the costs thereof;
(iii)    execute, in connection with any sale provided for in Section 5.3 or Section 5.4, any endorsements, assignments or other instruments of conveyance or transfer with respect to the Collateral;
(iv)    in the case of any Intellectual Property constituting Collateral, execute and deliver, and have recorded, any and all agreements, instruments, documents and papers as the Collateral Agent may request to evidence the Collateral Agent’s and the Secured Parties’ security interest in such Intellectual Property and the goodwill and general intangibles of such Grantor relating thereto or represented thereby; and
(v)    (1) sign and endorse any assignments, verifications, notices and other documents in connection with any of the Collateral; (2) commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral or any portion thereof and to enforce any other right in respect of any Collateral; (3) defend any suit, action or proceeding brought against such Grantor with respect to any Collateral; (4) settle, compromise or adjust any such suit, action or proceeding and, in connection therewith, give such discharges or releases as the Collateral Agent may deem appropriate; and (5) generally, sell, transfer, pledge and make any agreement with respect to or otherwise deal with any of the Collateral as fully and completely as though the Collateral Agent were the absolute owner thereof for all purposes, and do, at the Collateral Agent’s option and such Grantor’s expense, at any time, or from time to time, all acts and things which the Collateral Agent deems necessary to protect, preserve or realize upon the Collateral and the Secured Parties’ security interests therein and to effect the intent of this Agreement, all as fully and effectively as such Grantor might do.
Anything in this Section 6.1(a) to the contrary notwithstanding, the Collateral Agent agrees that, except as provided in Section 6.1(b), it will not exercise any rights under the power of attorney provided for in this Section 6.1(a) unless an Event of Default shall have occurred and be continuing.
(b)    If any Grantor fails to perform or comply with any of its agreements in this Agreement, the Collateral Agent, at its option, but without any obligation so to do, may perform or comply, or otherwise cause performance or compliance, with such agreements; provided, however, that unless an Event of Default has occurred and is continuing, the Collateral Agent shall not exercise this power without first making written demand on such Grantor and such Grantor failing to promptly comply therewith.
(c)    The expenses of the Collateral Agent incurred in connection with actions undertaken as provided in this Section 6.1 shall be payable by such Grantor to the extent that they would be payable by the Borrower pursuant to Section 11.04(a) of the Credit Agreement.
(d)    Each Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be done by virtue hereof.  All powers, authorizations and agencies contained in this Agreement are coupled with an interest and are irrevocable until a Payment in Full of the Obligations.
6.2.    Authorization of Financing Statements.  Each Grantor acknowledges that pursuant to Section 9-509(b) of the UCC and any other applicable law, the Collateral Agent is authorized to file or record financing or continuation statements (including financing statements and continuations covering As-Extracted Collateral to the extent not covered by a Mortgage), and amendments thereto, and other filing or recording 











documents or instruments with respect to the Collateral in such form and in such offices as the Collateral Agent reasonably determines appropriate to perfect or maintain the perfection of the security interests of the Collateral Agent under this Agreement.  Each Grantor agrees that such financing statements may describe the collateral in the same manner as described in this Agreement or such other description as the Collateral Agent, in its reasonable judgment, determines is necessary or advisable, including using the collateral description “all personal property”.  A photographic or other reproduction of this Agreement shall be sufficient as a financing statement or other filing or recording document or instrument for filing or recording in any jurisdiction.
SECTION 7.  LIEN ABSOLUTE
7.1.    Security Interest Absolute.  All rights of the Collateral Agent and all obligations of each Grantor hereunder shall be absolute and unconditional irrespective of, and each Grantor hereby waives, to the extent permitted by law, all rights, claims, and defenses that it might otherwise have (now or in the future) (other than related to payment and performance) with respect to, in each case: (a) any lack of validity or enforceability of the Credit Agreement, any other Loan Document, any of the Obligations or any other agreement or instrument relating to any of the foregoing, (b) any renewal or extension of, or any increase in the amount of the Obligations, any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations, or any other amendment, supplement, modification or waiver of or any consent to any departure from the Credit Agreement or any other Loan Document (other than this Agreement or, solely with respect to the Borrower, the Credit Agreement) or any Swap Contract, (c) any defense, set-off or counterclaim which may at any time be available to or be asserted by the Borrower or any other Person against any Secured Party, (d) any exchange, release or nonperfection of any Lien on other collateral, or any release or amendment or waiver of or consent under or departure from any guarantee, securing or guaranteeing all or any of the Obligations or (e) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Grantor in respect of the Obligations or this Agreement.
7.2.    Continuing Rights.  When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Grantor, the Collateral Agent may, but shall be under no obligation to, make a similar demand on or otherwise pursue such rights and remedies as it may have against Borrower, such Grantor or any other Person or against any collateral security or guarantee for the Obligations or any right of offset with respect thereto, and any failure by the Collateral Agent to make any such demand, to pursue such other rights or remedies or to collect any payments from Borrower, such Grantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of Borrower, such Grantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve such Grantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of Secured Party against such Grantor.  For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
SECTION 8.  THE COLLATERAL AGENT
8.1.    Authority of Collateral Agent.  Each Grantor acknowledges that the rights and responsibilities of the Collateral Agent under this Agreement with respect to any action taken by the Collateral Agent or the exercise or non-exercise by the Collateral Agent of any option, voting right, request, judgment or other right or remedy provided for herein or resulting or arising out of this Agreement shall, as between the Collateral Agent and the other Secured Parties, be governed by the Credit Agreement and by such other agreements with respect thereto as may exist from time to time among them, but, as between the Collateral Agent and the Grantors, the Collateral Agent shall be conclusively presumed to be acting as agent for the 











Secured Parties with full and valid authority so to act or refrain from acting, and no Grantor shall be under any obligation, or entitlement, to make any inquiry respecting such authority.
8.2.    No Duty on the Part of Collateral Agent or Secured Parties.  The powers conferred on the Collateral Agent hereunder are solely to protect the interests of the Secured Parties in the Collateral and shall not impose any duty upon the Collateral Agent or any other Secured Party to exercise any such powers.  The Administrative Agent’s sole duty with respect to the custody, safekeeping and physical preservation of the Collateral in its possession is to comply with Section 9-207 of the UCC.  The Collateral Agent and the other Secured Parties shall be accountable only for amounts that they actually receive as a result of the exercise of such powers, and neither they nor any of their officers, directors, employees or agents shall be responsible to any Grantor for any act or failure to act hereunder, except for their own gross negligence, bad faith or willful misconduct as determined by a final, non-appealable judgment of a court of competent jurisdiction.
8.3.    Appointment Pursuant to Credit Agreement.  The Collateral Agent has been appointed to act as Collateral Agent hereunder by the Lenders and, by their acceptance of the benefits hereof, the other Secured Parties.  The Collateral Agent shall be obligated, and shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including, without limitation, the release or substitution of Collateral), solely in accordance with this Agreement and the Credit Agreement; provided, the Collateral Agent shall exercise, or refrain from exercising, any remedies provided for herein in accordance with the terms of the Credit Agreement.  In furtherance of the foregoing provisions of this Section, each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent for the benefit of Secured Parties in accordance with the terms of this Section.  The rights, privileges, protections and immunities in the Credit Agreement for the benefit of the Collateral Agent and the other provisions of the Credit Agreement relating to the Collateral Agent are hereby incorporated herein with respect to the Collateral Agent.
8.4.    Hedge Bank; Cash Management Bank.  No Hedge Bank or Cash Management Bank that obtains the benefits of this Agreement, any other Security Document or any Collateral by virtue of the provisions of the Credit Agreement or of any other Security Document, shall have any right to notice of any action or to consent to, direct or object to any action under any Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents.  Notwithstanding any other provision of this Agreement to the contrary, the Collateral Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Hedging Agreements or Cash Management Obligations unless the Collateral Agent has received written notice of such Obligations, together with such supporting documentation as the Collateral Agent may request, from the applicable Hedge Bank or Cash Management Bank, as applicable.
SECTION 9.  MISCELLANEOUS
9.1.    Amendments in Writing.  None of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except in accordance with Section 11.01 of the Credit Agreement.  After Payment in Full, the provisions of this Agreement may be waived, amended, supplemented or otherwise modified by a written instrument executed by each affected Grantor and the Collateral Agent.
9.2.    Notices.  All notices, requests and demands to or upon the Collateral Agent or any Grantor hereunder shall be effected in the manner provided for in Section 11.02 of the Credit Agreement; provided 











that any such notice, request or demand to or upon any Grantor shall be addressed to such Grantor at its notice address set forth on Schedule 7.
9.3.    No Waiver by Course of Conduct; Cumulative Remedies.  No Secured Party shall by any act (except by a written instrument pursuant to Section 9.1), delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced to any Default or Event of Default.  No failure to exercise, nor any delay in exercising, on the part of any Secured Party, any right, power or privilege hereunder shall operate as a waiver thereof.  No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege.  A waiver by any Secured Party of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy which such Secured Party would otherwise have on any future occasion.  The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies provided by law.
9.4.    [Reserved].
9.5.    Successors and Assigns.  This Agreement shall be binding upon the successors and assigns of each Grantor and shall inure to the benefit of the Secured Parties and their successors and assigns; provided that no Grantor may assign, transfer or delegate any of its rights or obligations under this Agreement, except through a transaction permitted by the Credit Agreement, without the prior written consent of the Collateral Agent and any attempted assignment, transfer or delegation without such consent shall be null and void.
9.6.    Set-Off.  Each Grantor hereby irrevocably authorizes each Secured Party at any time and from time to time pursuant to, and to the extent set forth in, Section 11.02 of the Credit Agreement, upon any amount becoming due and payable hereunder, without notice to such Grantor, any such notice being expressly waived by such Grantor, to set-off and appropriate and apply any and all deposits (general or special, including Indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including trust accounts), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such party to or for the credit or the account of such Grantor, or any part thereof in such amounts as such Secured Party may elect, against and on account of the obligations and liabilities of such Grantor to such Secured Party hereunder and claims of every nature and description of such Secured Party against such Grantor, in any currency, arising hereunder, under the Credit Agreement or any other Loan Document, as such Secured Party may elect, whether or not such Secured Party has made any demand for payment and although such obligations, liabilities and claims may be contingent or unmatured.  Each Secured Party exercising any right of set-off shall notify the relevant Grantor promptly of any such set-off and the application made by such Secured Party of the proceeds thereof, provided that the failure to give such notice shall not affect the validity of such set-off and application.  The rights of each Secured Party under this Section 9.6 are in addition to other rights and remedies (including, without limitation, other rights of set-off) which such Secured Party may have.
9.7.    Counterparts.  This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging means (i.e., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.
9.8.    Severability.  Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction with respect to any Grantor shall, as to such jurisdiction, be ineffective to the extent of such 











prohibition or unenforceability without invalidating the remaining provisions hereof with respect to such Grantor, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction with respect to such Grantor.  The parties hereto shall endeavor in good- faith negotiations to replace any invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
9.9.    Section Headings.  The Section headings and Table of Contents used in this Agreement are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.
9.10.    Integration.  This Agreement, the other Loan Documents and any separate letter agreements with respect to fees payable to the Collateral Agent constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof and thereof.  There are no promises, undertakings, representations or warranties by any Secured Party relative to the subject matter hereof and thereof not expressly set forth or referred to herein or therein.
9.11.    GOVERNING LAW.  THIS AGREEMENT AND ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9.12.    Submission to Jurisdiction; Waivers.  SUBJECT TO CLAUSE (E) OF THE FOLLOWING SENTENCE, ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT OF OR RELATING HERETO SHALL BE BROUGHT IN ANY FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN THE BOROUGH OF MANHATTAN OR, IF THAT COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, IN ANY STATE COURT LOCATED IN THE CITY AND COUNTY OF NEW YORK.  BY EXECUTING AND DELIVERING THIS GUARANTY, EACH GRANTOR, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE (SUBJECT TO CLAUSE (E) BELOW) JURISDICTION AND VENUE OF SUCH COURTS; (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE GRANTOR AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 11.02 OF THE CREDIT AGREEMENT; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE GRANTOR IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES THAT THE AGENTS, ARRANGERS, COLLATERAL AGENT AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY GRANTOR IN THE COURTS OF ANY OTHER JURISDICTION IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER ANY LOAN DOCUMENT OR AGAINST ANY COLLATERAL OR THE ENFORCEMENT OF ANY JUDGMENT, AND HEREBY SUBMITS TO THE JURISDICTION OF, AND CONSENTS TO VENUE IN, ANY SUCH COURT.  EACH GRANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES.











9.13.    Acknowledgments.  Each Grantor hereby acknowledges that:
(a)    it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents to which it is a party;
(b)    no Secured Party has any fiduciary relationship with or duty to any Grantor arising out of or in connection with this Agreement or any of the other Loan Documents and the provisions of Section 11.11 of the Credit Agreement are incorporated herein by reference, mutatis mutandis, and the relationship between the Grantors, on the one hand, and the Secured Parties, on the other hand, in connection herewith or therewith is solely that of debtor and creditor; and
(c)    no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Secured Parties or among the Grantors and the Secured Parties.
9.14.    WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT, BREACH OF DUTY, COMMON LAW, STATUTE OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.  EACH PARTY HERETO FURTHER REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
9.15.    Release.
(a)    Subject to the terms of the Intercreditor Agreements, upon Payment in Full of Obligations, the Collateral shall be automatically released from the Liens created hereby, and this Agreement and all obligations (other than those expressly stated to survive such termination) of the Collateral Agent and each Grantor hereunder shall terminate, all without delivery of any instrument or performance of any act by any party, and all rights to the Collateral shall revert to the Grantors.  At the request and sole expense of any Grantor following any such termination, the Collateral Agent shall deliver to such Grantor any Collateral held by the Collateral Agent hereunder, and execute and deliver to such Grantor such documents as such Grantor shall reasonably request to evidence such termination.
(b)    The Collateral shall otherwise be released from the Liens created hereby on the terms and conditions of and to the extent provided by Section 9.12 of the Credit Agreement.
(c)    Until Payment in Full of the Obligations, each Grantor acknowledges that it is not authorized to file any financing statement amendment or termination statement with respect to any financing statement originally filed in connection herewith without the prior written consent of the Collateral Agent, subject to each Grantor’s rights under Section 9-509(d) of the UCC.











9.16.    Additional Grantors.  Each Subsidiary of the Borrower that is required to become a party to this Agreement pursuant to Section 6.16 of the Credit Agreement shall become a Grantor for all purposes of this Agreement upon execution and delivery by such Subsidiary of an Assumption Agreement in the form of Annex 1 hereto.














IN WITNESS WHEREOF, each of the undersigned has caused this Pledge and Security Agreement to be duly executed and delivered as of the date first above written.
	
		
	GRANTORS:
CONTURA ENERGY, INC.   
CONTURA ENERGY, LLC  
EMERALD CONTURA, LLC  
DICKENSON-RUSSELL CONTURA, LLC NICHOLAS CONTURA, LLC  
CONTURA MINING HOLDING, LLC CONTURA COAL RESOURCES, LLC CONTURA WYOMING LAND, LLC CONTURA COAL SALES, LLC  
CONTURA ENERGY SERVICES, LLC POWER MOUNTAIN CONTURA, LLC CUMBERLAND CONTURA, LLC  
CONTURA PENNSYLVANIA LAND, LLC CONTURA FREEPORT, LLC  
CONTURA EUROPEAN MARKETING, LLC PARAMONT CONTURA, LLC  
CONTURA PENNSYLVANIA TERMINAL, LLC  
CONTURA CAPP LAND, LLC  
CONTURA COAL WEST, LLC  
CONTURA TERMINAL, LLC

	By:
	 

	 
	Name:   

	 
	Title:   






SIGNATURE PAGE TO PLEDGE AND SECURITY AGREEMENT - CONTURA
    








	
		
	COLLATERAL AGENT:
CITIBANK, N.A., 
as Collateral Agent

	By:
	 

	 
	Name:   

	 
	Title:   






SIGNATURE PAGE TO PLEDGE AND SECURITY AGREEMENT - CONTURA
    








Pledge and Security Agreement
ASSUMPTION AGREEMENT, dated as of        , 20     , made by         (the “Additional Grantor”), in favor of CITIBANK, N.A., as collateral agent (in such capacity, the “Collateral Agent”) for Secured Parties (as defined in the Pledge and Security Agreement).  All capitalized terms not defined herein shall have the meaning ascribed to them in such Pledge and Security Agreement.
W I T N E S S E T H :
WHEREAS, Contura Energy, Inc.  (the “Borrower”) and certain of its Affiliates (other than the Additional Grantor) have entered into the Pledge and Security Agreement, dated as of April 3, 2017 (as amended, restated, supplemented, or otherwise modified from time to time, the “Pledge and Security Agreement”) in favor of the Collateral Agent for the ratable benefit of the Secured Parties;
WHEREAS, the Credit Agreement requires the Additional Grantor to become a party to the Pledge and Security Agreement; and
WHEREAS, the Additional Grantor has agreed to execute and deliver this Assumption Agreement in order to become a party to the Pledge and Security Agreement;
NOW, THEREFORE, IT IS AGREED:
1.    Pledge and Security Agreement.  By executing and delivering this Assumption Agreement, the Additional Grantor, as provided in Section 9.16 of the Pledge and Security Agreement, hereby becomes a party to the Pledge and Security Agreement as a Grantor thereunder with the same force and effect as if originally named therein as a Grantor and, without limiting the generality of the foregoing, hereby expressly assumes all obligations and liabilities of a Grantor thereunder.  The information set forth in Annex 1-A is true and correct in all material respects as of the date hereof.  The Additional Grantor hereby represents and warrants that each of the representations and warranties contained in Section 3 of the Pledge and Security Agreement is true and correct in all material respects (except to the extent qualified as to materiality in which case they are true and correct in all respects) on and as the date hereof (after giving effect to this Assumption Agreement) as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date, and the Secured Parties shall be entitled to rely on each of such representations and warranties as if they were fully set forth herein, provided that each reference in each such representation and warranty to any Borrower’s knowledge shall, for purposes of Section 3.1 of the Pledge and Security Agreement, be deemed to be a reference to such Additional Grantor’s knowledge.
2.    Governing Law.  THIS ASSUMPTION AGREEMENT AND ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS ASSUMPTION AGREEMENT (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.














IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to be duly executed and delivered as of the date first above written.
	
		
	[ADDITIONAL GRANTOR],

	By:
	 

	 
	Name:   

	 
	Title:   
















Annex 1-A to Assumption Agreement
Supplement to Schedule 1
Supplement to Schedule 2
Supplement to Schedule 3
Supplement to Schedule 4
Supplement to Schedule 5
Supplement to Schedule 6
Supplement to Schedule 7














Annex 2 to
Pledge and Security Agreement
FORM OF UNCERTIFICATED SECURITIES CONTROL AGREEMENT
This CONTROL AGREEMENT (as amended, supplemented or otherwise modified from time to time, the “Control Agreement”) dated as of        ,    ,     is made by and among          , a    corporation (the “Grantor”), CITIBANK, N.A., as collateral agent (in such capacity, the “Collateral Agent”) for the Secured Parties (as defined in the Pledge and Security Agreement referred to below), and [    ], a Delaware corporation (the “Issuer”).
WHEREAS, the Grantor has granted to the Collateral Agent for the benefit of the Secured Parties a security interest in the uncertificated securities of the Issuer owned by the Grantor from time to time (collectively, the “Pledged Securities”), and all additions thereto and substitutions and proceeds thereof (collectively, with the Pledged Securities, the “Collateral”) pursuant to a Pledge and Security Agreement, dated as of April 3, 2017 (as amended, restated, supplemented, or otherwise modified from time to time, the “Pledge and Security Agreement”), among the Grantor and the other persons party thereto as grantors in favor of the Collateral Agent.  All capitalized terms not defined herein shall have the meaning ascribed to them in such Pledge and Security Agreement.
WHEREAS, the following terms which are defined in Articles 8 and 9 of the Uniform Commercial Code in effect in the State of New York on the date hereof (the “UCC”) are used herein as so defined: Adverse Claim, Control, Instruction, Proceeds and Uncertificated Security.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1.  Notice of Security Interest.  The Grantor, the Collateral Agent and the Issuer are entering into this Control Agreement to perfect and confirm the priority of the Collateral Agent’s security interest in the Collateral.  The Issuer acknowledges that this Control Agreement constitutes written notification to the Issuer of the Collateral Agent’s security interest in the Collateral.  The Issuer agrees to promptly make all necessary entries or notations in its books and records to reflect the Collateral Agent’s security interest in the Collateral and, upon request by the Collateral Agent if an Event of Default has occurred and is continuing, to register the Collateral Agent as the registered owner of any or all of the Pledged Securities.  The Issuer acknowledges that the Collateral Agent has control over the Collateral.
SECTION 2.  Collateral.  The Issuer hereby represents and warrants to, and agrees with the Grantor and the Collateral Agent that (i) the terms of any limited liability company interests or partnership interests included in the Collateral from time to time shall expressly provide that they are securities governed by Article 8 of the Uniform Commercial Code in effect from time to time in the State of [    ], (ii) the Pledged Securities are uncertificated securities, (iii) the Issuer’s jurisdiction is the State of [    ] or such other state of which the Issuer has notified the Collateral Agent promptly of a change thereto and (iv) Schedule 2 contains a true and complete description of the Pledged Securities as of the date hereof.
SECTION 3.  Control.  If an Event of Default has occurred and is continuing, the Issuer hereby agrees, upon written direction from the Collateral Agent without further consent from the Grantor, (a) to comply with all instructions and directions of any kind originated by the Collateral Agent concerning the Collateral, to liquidate or otherwise dispose of the Collateral as and to the extent directed by the Collateral Agent and to pay over to the Collateral Agent all proceeds without any set-off or deduction, and (b) except 











as otherwise directed by the Collateral Agent, not to comply with the instructions or directions of any kind originated by the Grantor or any other person.
SECTION 4.  Other Agreements.  In the event of any conflict between the provisions of this Control Agreement and any other agreement governing the Pledged Securities or the Collateral, the provisions of this Control Agreement shall control.
SECTION 5.  Protection of Issuer.  The Issuer may rely and shall be protected in acting upon any notice, instruction or other communication that it reasonably believes to be genuine and authorized.
SECTION 6.  Termination.  This Control Agreement shall terminate automatically upon receipt by the Issuer of written notice executed by the Collateral Agent that (i)    the Payment in Full of the Obligations has occurred, (ii) all of the Collateral has been released or (iii) the Pledged Securities cease to be Uncertificated Securities, whichever is sooner, and the Issuer shall thereafter be relieved of all duties and obligations hereunder.
SECTION 7.  Notices.    All notices, requests and demands to or upon the respective parties hereto to be effective shall be in writing (including by telecopy), and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when delivered, or three (3) days after being deposited in the mail, postage prepaid, or, in the case of telecopy notice, when received, to the Grantor’s and the Collateral Agent’s addresses as set forth in the Pledge and Security Agreement, and to the Issuer’s address as set forth below, or to such other address as any party may give to the others in writing for such purpose:
[Name of Issuer] 
[Address of Issuer] 
Attention:       
Telephone: ( ) -       
Telecopy: ( ) -     
SECTION 8.  Amendments in Writing.  None of the terms or provisions of this Control Agreement may be waived, amended, supplemented or otherwise modified except by a written instrument executed by the parties hereto.
SECTION 9.  Entire Agreement.  This Control Agreement and the Pledge and Security Agreement constitute the entire agreement and supersede all other prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof.
SECTION 10.  Execution in Counterparts.  This Control Agreement may be executed in any number of counterparts by one or more parties to this Control Agreement and all of said counterparts taken together shall be deemed to constitute one and the same instrument.  Delivery of an executed signature page of this Control Agreement by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart hereof.
SECTION 11.  Successors and Assigns.  This Control Agreement shall be binding upon the successors and assigns of each of the parties hereto and shall inure to the benefit of the parties hereto and their respective successors and assigns, provided that neither the Grantor nor the Issuer may assign, transfer or delegate any of its rights or obligations under this Control Agreement, except through a transaction permitted by the Credit Agreement, without the prior written consent of the Collateral Agent and any such assignment, transfer or delegation without such consent shall be null and void.











SECTION 12.  Severability.  Any provision of this Control Agreement which is prohibited or unenforceable in any jurisdiction with respect to the Grantor and Issuer shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof with respect to the Grantor and Issuer, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.  The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 13.  Section Headings.  The Section headings used in this Control Agreement are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.
SECTION 14.  Submission to Jurisdiction; Waivers.  (a) The terms of Section 9.12 of the Pledge and Security Agreement with respect to submission to jurisdiction, waiver of venue and service of process are incorporated herein by reference mutatis mutandis and (b) each party hereto agrees to (i) such terms and (ii) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover any special, exemplary, punitive or consequential damages; provided that this waiver shall not limit the reimbursement and indemnification obligations of the Grantors under Section 9.4(b) of the Pledge and Security Agreement.
SECTION 15.  GOVERNING LAW AND JURISDICTION.  THIS CONTROL AGREEMENT HAS BEEN DELIVERED TO AND ACCEPTED BY THE COLLATERAL AGENT AND WILL BE DEEMED TO BE MADE IN THE STATE OF NEW YORK.  THIS CONTROL AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 16.  WAIVER OF JURY TRIAL.  The terms of Section 9.14 of the Pledge and Security Agreement are incorporated herein by reference mutatis mutandis and the parties hereto agree to such terms.












IN WITNESS WHEREOF, each of the undersigned has caused this Control Agreement to be duly executed and delivered as of the date first above written.
	
		
	[NAME OF GRANTOR]

	By:
	 

	 
	Name:   

	 
	Title:   






	
		
	CITIBANK, N.A., as Collateral Agent

	By:
	 

	 
	Name:   

	 
	Title:   






	
		
	[NAME OF ISSUER]

	By:
	 

	 
	Name:   

	 
	Title:   
















EXHIBIT I 
TO 
CREDIT AGREEMENT
FORM OF COLLATERAL QUESTIONNAIRE
[SEE ATTACHED]












[FORM OF]
COLLATERAL QUESTIONNAIRE SUPPLEMENT
 , 20[ ]
Reference is made to that certain Credit Agreement dated as of April 3, 2017 (as amended, restated, supplemented, reaffirmed or otherwise modified from time to time, the “Credit Agreement”), by and among, inter alios, Contura Energy, Inc., a Delaware corporation (the “Company”), each of the other borrowers party thereto, and Citibank, N.A., as Administrative Agent and Collateral Agent.  Capitalized terms used but not defined herein shall have the meaning assigned to such terms in the Uniform Commercial Code or the Credit Agreement, as applicable.  As used herein, the term “Collateral” shall mean “Collateral” as defined in the Security Agreement.
The undersigned, a Responsible Officer of the Company, hereby certifies, solely in the capacity of an officer and not with any individual capacity, with respect to itself and each other Borrower (together with the Company, each a “Grantor”), as of the date hereof, as follows:
1.    Name.    The exact legal name of each Grantor as that name appears on its Certificate of Formation (or equivalent) is attached hereto as Schedule 1.
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below] 
Source:    UCC §9-503(a).  
Other Identifying Factors.
(a)    The mailing address of each Grantor is attached hereto as Schedule 1.
Source:    UCC §9-516(b)(5)(A).
(b)    If different from its mailing address, each Grantor’s place of business or, if more than one, its chief executive office is attached hereto as Schedule 1.
Source:    UCC §§9-301(1) and 9-307.
(c)    The type of organization of each Grantor is attached hereto as Schedule 1.
Source:    UCC §9-516(b)(5)(C).
(d)    The jurisdiction of each Grantor’s organization is attached hereto as Schedule 1.
Source:    UCC §9-516(b)(5)(C).
(e)    Each Grantor’s state issued organizational identification number is attached hereto as Schedule 1.
Source:    UCC §9-9-516(b)(5)(C).











2.    Other Names, Etc.
(a)    The following is a list of all other names (including trade names or similar appellations) used by any Grantor, or any other business or organization to which any Grantor became the successor by merger, consolidation, acquisition, change in form, nature or jurisdiction of organization or otherwise, now or at any time during the past five years:
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]
Source:    UCC §9-507(c); former UCC §9-402(7).
(b)    The following is a list of the information required in Section 1 above for any other business or organization to which any Grantor became the successor by merger, consolidation, acquisition (other than a transaction disclosed pursuant to Section 10 below), change in form, nature or jurisdiction of organization or otherwise, now or at any time during the past five years:
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below] 
Source:    UCC §9-316.
3.    Owned and Leased Real Property.  Attached hereto as Schedule 3 is a complete list of all Material Real Property (as defined in the Credit Agreement) of any Grantor.
4.    Other Current Locations.
(a)    The following are all other locations in the United States of America at which any Grantor maintains any books or records relating to any of the Collateral consisting of Accounts, Instruments, Chattel Paper, General Intangibles or Goods:
•    The books and records for each of the Grantors are located at the addresses set forth on Schedule 1 attached hereto.
Source:    UCC §§9-301(2) and (3) and 9-102(a)(2).
(b)    The following are all other leased locations in the United States of America where any material amount (fair market value of $1,500,000 or more individually or $3,000,000 or more in the aggregate) of the Grantors’ tangible personal property (except for Equipment and Inventory in transit, undergoing repairs, or replacements) is located:
	
					
	Address
	City
	Zip
	County
	State

	 
	 
	 
	 
	 

	 
	 
	 
	 
	 

	 
	 
	 
	 
	 




[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]











[Identify changes below]
Source:    UCC §§9-301(2) and (3).
(c)    The following are the names and addresses of all persons or entities other than the any Grantor, such as lessees, consignees, warehousemen or purchasers of chattel paper, which have possession or are intended to have possession of any material amount (fair market value of $1,500,000 or more individually or $3,000,000 or more in the aggregate) of the Collateral.
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]
Source:    UCC §§9-301(2) and (3), 9-312 and 9-313; former UCC §§9-103(1), 9-103(4), 9-304(2) and 9-304(3).
5.    Prior Locations.
(a) Set forth below is the information required by §4(a) or (b) with respect to each location or place of business previously maintained by any Grantor at any time during the past four months:
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below] 
Source:    UCC §§9-316.
6.    Fixtures.  Attached hereto as Schedule 6 is the information required by UCC §9- 502(b) or former UCC §9-402(5) of each state in which any of the Collateral consisting of fixtures are or are to be located and the name and address of each real estate recording office where a mortgage on the real estate on which such fixtures are or are to be located would be recorded.
Source:    UCC §§9-502(b) and 9-516(b)(3)(D).
7.    Intellectual Property.  Attached hereto as Schedule 7 is a complete list of all United States patents, copyrights, trademarks, trade names and service marks registered or for which applications are pending in the name of any Grantor.
8.    Securities; Instruments.  Attached hereto as Schedule 8 is a complete list of all stocks, bonds, debentures, notes and other securities and investment property owned by any Grantor (provide name of issuer, type of organization which issued such equity interests (e.g.  corporation, limited liability company, partnership or trust) and a description of the security, including number of shares, total shares outstanding, percentage of interest pledged, certificate number (if uncertificated, please so indicate) and par value).
9.    Bank Accounts.  Attached hereto as Schedule 9 is a complete list of all bank accounts (including deposit, securities and commodities accounts) maintained by any Grantor, other than Excluded Accounts (as defined in the Credit Agreement) (provide name and address of depository bank, type of account and account number).











10.    Unusual Transactions.  Except for those purchases, acquisitions and other transactions described in Section 2 or on Schedule 10 attached hereto, all of the Collateral has been originated by the Grantors (or any of them) in the ordinary course of the Grantors' business or consists of goods which have been acquired by the Grantors (or any of them) in the ordinary course from a person in the business of selling goods of that kind.
Source:    UCC §§9-102(a)(64), 9-203(f), 9-301(2), 9-315(a) and 9-316).
11.    Commercial Tort Claims.  Attached hereto as Schedule 11 is a brief written description of each and every commercial tort claim (with a value of $1,500,000 or more individually or $3,000,000 in the aggregate) which the Grantors hold.
Source:    UCC §9-108(e)(1).
12.    Letter of Credit Rights.  The following is a true and correct list of the Grantors’ letter of credit rights (with a value of $1,500,000 or more individually or $3,000,000 in the aggregate), including a brief description thereof:
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]
13.    “As Extracted” Collateral.  The following is a complete list of all the locations where any Grantor owns, leases or has an interest in any Mine (as defined in the Credit Agreement):
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]
14.    Timber to be Cut.  The following is a complete list of all the locations where any Grantor owns goods that are timber to be cut:
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]












IN    WITNESS    WHEREOF, the undersigned    hereto has    caused this Collateral Questionnaire to be executed as of the date first referenced above.
	
		
	CONTURA ENERGY, INC.

	By:
	 

	 
	Name:   

	 
	Title:   
















SCHEDULE 1
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]














SCHEDULE 3
Material Real Property
Material Owned Property
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]














Material Leased Property
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]














SCHEDULE 6
Fixtures
See Schedule 3.














SCHEDULE 7
PATENTS AND PATENT APPLICATIONS
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]
TRADEMARK APPLICATIONS AND REGISTRATIONS
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]
COPYRIGHT APPLICATIONS AND REGISTRATIONS
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]














SCHEDULE 8
Pledged Membership Interests
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]
Owned Equity in Joint Ventures (not pledged):
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]
Debt Securities & Instruments:
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]














SCHEDULE 9
Bank Accounts
Deposit Accounts:
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]














SCHEDULE 10
Unusual Transactions
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]














SCHEDULE 11
Commercial Tort Claims
[No changes from prior [Collateral Questionnaire/Collateral Questionnaire Supplement dated [●]]
[Identify changes below]














EXHIBIT J 
TO 
CREDIT AGREEMENT
FORM OF COLLATERAL QUESTIONNAIRE SUPPLEMENT
[SEE ATTACHED]
















[FORM OF]
COLLATERAL QUESTIONNAIRE
 , 2017
Reference is made to that certain Pledge and Security Agreement dated as of April 3, 2017 (as amended, restated, supplemented, reaffirmed or otherwise modified from time to time, the “Security Agreement”), by and among Contura Energy, Inc., a Delaware corporation (the “Company”), each of the other grantors party thereto, and Citibank, N.A., as Administrative Agent and Collateral Agent.  Capitalized terms used but not defined herein shall have the meaning assigned to such terms in the Uniform Commercial Code.  As used herein, the term “Collateral” shall mean “Collateral” as defined in the Security Agreement.
The undersigned, the Executive Vice President, Chief Financial Officer and Treasurer of the Company, hereby certifies, solely in the capacity of an officer and not with any individual capacity, with respect to itself and each of its subsidiaries named as a “Grantor” in the Security Agreement (together with the Company, each a “Grantor”), as of the date hereof, as follows:
1.    Name.    The exact legal name of each Grantor as that name appears on its Certificate of Formation (or equivalent) is attached hereto as Schedule 1.
Source:    UCC §9-503(a).
Other Identifying Factors.
(a)    The mailing address of each Grantor is attached hereto as Schedule 1.
Source:    UCC §9-516(b)(5)(A).
(b)    If different from its mailing address, each Grantor’s place of business or, if more than one, its chief executive office is attached hereto as Schedule 1.
Source:    UCC §§9-301(1) and 9-307.
(c)    The type of organization of each Grantor is attached hereto as Schedule 1.
Source:    UCC §9-516(b)(5)(C).
(d)    The jurisdiction of each Grantor’s organization is attached hereto as Schedule 1.
Source:    UCC §9-516(b)(5)(C).
(e)    Each Grantor’s state issued organizational identification number is attached hereto as Schedule 1.
Source:    UCC §9-9-516(b)(5)(C).
2.    Other Names, Etc.
(a)    The following is a list of all other names (including trade names or similar appellations) used by any Grantor, or any other business or organization to which any Grantor became the successor by 











merger, consolidation, acquisition, change in form, nature or jurisdiction of organization or otherwise, now or at any time during the past five years:
Source:    UCC §9-507(c); former UCC §9-402(7).
(b)    The following is a list of the information required in Section 1 above for any other business or organization to which any Grantor became the successor by merger, consolidation, acquisition (other than a transaction disclosed pursuant to Section 10 below), change in form, nature or jurisdiction of organization or otherwise, now or at any time during the past five years:
Source:    UCC §9-316.
3.    Owned and Leased Real Property.  Attached hereto as Schedule 3 is a complete list of all Material Real Property (as defined in the Credit Agreement) of any Grantor.
4.    Other Current Locations.
(a)    The following are all other locations in the United States of America at which any Grantor maintains any books or records relating to any of the Collateral consisting of Accounts, Instruments, Chattel Paper, General Intangibles or Goods:
•    The books and records for each of the Grantors are located at the addresses set forth on Schedule 1 attached hereto.
Source:    UCC §§9-301(2) and (3) and 9-102(a)(2).
(b)    The following are all other leased locations in the United States of America where any material amount (fair market value of $1,500,000 or more individually or $3,000,000 or more in the aggregate) of the Grantors’ tangible personal property (except for Equipment and Inventory in transit, undergoing repairs, or replacements) is located:
	
					
	Address
	City
	Zip
	County
	State

	 
	 
	 
	 
	 

	 
	 
	 
	 
	 

	 
	 
	 
	 
	 




Source:    UCC §§9-301(2) and (3).
(c)    The following are the names and addresses of all persons or entities other than the any Grantor, such as lessees, consignees, warehousemen or purchasers of chattel paper, which have possession or are intended to have possession of any material amount (fair market value of $1,500,000 or more individually or $3,000,000 or more in the aggregate) of the Collateral.
Source:    UCC §§9-301(2) and (3), 9-312 and 9-313; former UCC §§9-103(1), 9-103(4), 9-304(2) and 9-304(3).
5.    Prior Locations.
(a) Set forth below is the information required by §4(a) or (b) with respect to each location or place of business previously maintained by any Grantor at any time during the past four months:











Source:    UCC §§9-316.
6.    Fixtures.  Attached hereto as Schedule 6 is the information required by UCC §9- 502(b) or former UCC §9-402(5) of each state in which any of the Collateral consisting of fixtures are or are to be located and the name and address of each real estate recording office where a mortgage on the real estate on which such fixtures are or are to be located would be recorded.
Source:    UCC §§9-502(b) and 9-516(b)(3)(D).
7.    Intellectual Property.  Attached hereto as Schedule 7 is a complete list of all United States patents, copyrights, trademarks, trade names and service marks registered or for which applications are pending in the name of any Grantor.
8.    Securities; Instruments.  Attached hereto as Schedule 8 is a complete list of all stocks, bonds, debentures, notes and other securities and investment property owned by any Grantor (provide name of issuer, type of organization which issued such equity interests (e.g.  corporation, limited liability company, partnership or trust) and a description of the security, including number of shares, total shares outstanding, percentage of interest pledged, certificate number (if uncertificated, please so indicate) and par value).
9.    Bank Accounts.  Attached hereto as Schedule 9 is a complete list of all bank accounts (including deposit, securities and commodities accounts) maintained by any Grantor, other than Excluded Accounts (as defined in the Credit Agreement) (provide name and address of depository bank, type of account and account number).
10.    Unusual Transactions.  Except for those purchases, acquisitions and other transactions described in Section 2 or on Schedule 10 attached hereto, all of the Collateral has been originated by the Grantors (or any of them) in the ordinary course of the Grantors' business or consists of goods which have been acquired by the Grantors (or any of them) in the ordinary course from a person in the business of selling goods of that kind.
Source:    UCC §§9-102(a)(64), 9-203(f), 9-301(2), 9-315(a) and 9-316).
11.    Commercial Tort Claims.  Attached hereto as Schedule 11 is a brief written description of each and every commercial tort claim (with a value of $1,500,000 or more individually or $3,000,000 in the aggregate) which the Grantors hold.
Source:    UCC §9-108(e)(1).
12.    Letter of Credit Rights.  The following is a true and correct list of the Grantors’ letter of credit rights (with a value of $1,500,000 or more individually or $3,000,000 in the aggregate), including a brief description thereof:
13.    “As Extracted” Collateral.  The following is a complete list of all the locations where any Grantor owns, leases or has an interest in any Mine (as defined in the Credit Agreement):
See Schedule 5.20 to the Credit Agreement.
14.    Timber to be Cut.  The following is a complete list of all the locations where any Grantor owns goods that are timber to be cut:












IN    WITNESS    WHEREOF, the undersigned    hereto has    caused this Collateral Questionnaire to be executed as of the date first referenced above.


	
		
	CONTURA ENERGY, INC.

	By:
	 

	 
	Name:   

	 
	Title:   




















SCHEDULE 1
















SCHEDULE 3
Material Real Property
Material Owned Property
















Material Leased Property
















SCHEDULE 6
Fixtures
See Schedule 3.














SCHEDULE 7
PATENTS AND PATENT APPLICATIONS
TRADEMARK APPLICATIONS AND REGISTRATIONS
COPYRIGHT APPLICATIONS AND REGISTRATIONS














SCHEDULE 8
Pledged Membership Interests
Owned Equity in Joint Ventures (not pledged):
Debt Securities & Instruments:














SCHEDULE 9
Bank Accounts
Deposit Accounts:














SCHEDULE 10
Unusual Transactions














SCHEDULE 11
Commercial Tort Claims














EXHIBIT K
FORM OF 
ASSUMPTION AGREEMENT 
(this “Assumption Agreement”)
ASSUMPTION AGREEMENT, dated as of    , 20    , made by      , a    [corporation] [limited liability company] [limited partnership] (the “Additional Borrower”), in favor of Citibank, N.A., as administrative agent (in such capacity, the “Administrative Agent”) for the banks and other financial institutions (the “Lenders”) parties to the Credit Agreement referred to below.  All capitalized terms not defined herein shall have the meaning ascribed to them in such Credit Agreement.
WITNESSETH:
WHEREAS, Contura Energy, Inc., Contura Energy, LLC, Emerald Contura, LLC, Dickenson-Russell Contura, LLC, Nicholas Contura, LLC, Contura Mining Holding, LLC, Contura Coal Resources, LLC, Contura Wyoming Land, LLC, Contura Coal Sales, LLC, Contura Energy Services, LLC, Power Mountain Contura, LLC, Cumberland Contura, LLC, Contura Pennsylvania Land, LLC, Contura Freeport, LLC, Contura European Marketing, LLC, Paramont Contura, LLC, Contura Pennsylvania Terminal, LLC, Contura CAPP Land, LLC, Contura Coal West, LLC and Contura Terminal, LLC (collectively, the “Existing Borrowers”, and together with the Additional Borrower, collectively, the “Borrowers”), the Guarantors party thereto, the Lenders and L/C Issuers party thereto from time to time and the Administrative Agent have entered into that certain Asset-Based Revolving Credit Agreement, dated as of April 3, 2017 (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “Credit Agreement”);
WHEREAS, the Credit Agreement provides for a guarantee by the Guarantors in favor of the Administrative Agent for the benefit of the Secured Parties;
WHEREAS, the Credit Agreement requires the Additional Borrower to become a party to thereto as a borrower and guarantee the Obligations thereunder pursuant to Article 10 therefor; and
WHEREAS, the Additional Borrower has agreed to execute and deliver this Assumption Agreement in order to become a party to the Credit Agreement and the Security Agreement;
NOW, THEREFORE, IT IS AGREED:
1.    By executing and delivering this Assumption Agreement, the Additional Borrower, as provided in Section 6.12 of the Credit Agreement, hereby becomes a party to the Credit Agreement as both a Borrower and a Guarantor thereunder with the same force and effect as if originally named therein as a Borrower and a Guarantor and, without limiting the generality of the foregoing, hereby expressly assumes all obligations and liabilities of a Borrower and a Guarantor thereunder.
2.    The Additional Borrower hereby represents and warrants that (i) each of the representations and warranties, to the extent applicable to a Borrower and a Guarantor, contained in the Credit Agreement and in each other Loan Document, is true and correct in all material respects on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date and (ii) as of the date hereof, no Default or Event of Default has occurred or is continuing, or would result from such Person becoming an Borrower and a Guarantor under the Credit Agreement.











3.    The Additional Borrower agrees that the guarantees of the Obligations contained in the Credit Agreement will apply to the Obligations of the Additional Borrower, to the extent applicable in accordance with the terms thereof.  Upon execution of this Assumption Agreement by the Additional Borrower and the Administrative Agent, and the satisfaction of the conditions set forth in Section 6.12 of the Credit Agreement, the Additional Borrower (i) shall be a party to the Credit Agreement and the other Loan Documents and shall constitute a “Borrower” and a “Guarantor” for all purposes thereof with the same force and effect as if originally named a Borrower and a Guarantor therein and (ii) agrees to be bound by all provisions of the Credit Agreement and the other Loan Documents and shall have all the rights and obligations of a Borrower or a Guarantor thereunder.
4.    The Additional Borrower hereby ratifies and agrees to be bound by Section 11.18 (Joint and Several Liability) of the Credit Agreement and the appointment of the Borrower Representative under Section 11.21 of the Credit Agreement.
5.    Governing Law.  THIS ASSUMPTION AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[SIGNATURE PAGES FOLLOW]
















IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to be duly executed and delivered as of the date first above written.
	
		
	[ADDITIONAL BORROWER]

	By:
	 

	 
	Name:   

	 
	Title:   






	
		
	CITIBANK, N.A., 
as Administrative Agent

	By:
	 

	 
	Name:   

	 
	Title:   
















EXHIBIT L 
TO 
CREDIT AGREEMENT
FORM OF SOLVENCY CERTIFICATE
 _____________, _____
THE UNDERSIGNED CHIEF FINANCIAL OFFICER OF THE COMPANY (AS DEFINED BELOW) DOES HEREBY CERTIFY (IN SUCH CAPACITY AND NOT IN AN INDIVIDUAL CAPACITY) THAT, AS OF THE DATE HEREOF, AFTER GIVING EFFECT TO THE TRANSACTIONS CONTEMPLATED BY THE CREDIT AGREEMENT (AS DEFINED BELOW):
1.    I am the chief financial officer of Contura Energy, Inc., a Delaware corporation (“Company”).
2.    Reference is made to the Asset-Based Revolving Credit Agreement, dated as of April 3, 2017 (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “Credit Agreement”), by and among the Company, the other Borrowers, the Guarantors party thereto, the Lenders and L/C Issuers party thereto from time to time and Citibank, N.A., as Administrative Agent.  Capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement.
3.    I have reviewed the terms of the Credit Agreement and the definitions and provisions contained in the Credit Agreement relating thereto, together with each of the Loan Documents, and I have made, or have caused to be made under my supervision, such reasonable examination as is necessary to enable me to express an informed opinion as to the matters referred to herein.
4.    Based upon my review and examination described in paragraph 3 above, I certify that as of the date hereof, after giving effect to the consummation of the Transactions and the other transactions contemplated by the Loan Documents, the Company and its Restricted Subsidiaries are, on a consolidated basis, Solvent.
For purposes of this Certificate, “Solvent” means, with respect to any Person, that as of the date of determination, both (i)(a) the sum of such Person’s debt (including contingent liabilities) does not exceed the present fair saleable value of such Person’s present assets; (b) such Person’s capital is not unreasonably small in relation to its business as contemplated on the Closing Date or with respect to any transaction contemplated to be undertaken after the Closing Date; and (c) such Person has not incurred and does not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts as they become due (whether at maturity or otherwise); and (ii) such Person is “solvent” within the meaning given that term and similar terms under the Bankruptcy Code and other applicable laws relating to fraudulent transfers and conveyances.  For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standards No.  5).
[SIGNATURE PAGE FOLLOWS]













The foregoing certifications are made and delivered as of the date first set forth above.
	
		
	




	By:
	 

	 
	Name:   

	 
	Title:   Chief Financial Officer






[Signature Page to Solvency Certificate]














EXHIBIT M-1 
TO 
CREDIT AGREEMENT
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to the Asset-Based Revolving Credit Agreement, dated as of April 3, 2017 (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “Credit Agreement”), by and among Contura Energy, Inc.  (the “Company”), the other Borrowers, the Guarantors party thereto, the Lenders and L/C Issuers party thereto from time to time and Citibank, N.A., as Administrative Agent.  Capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement.
Pursuant to the provisions of Section 3.01 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Company within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Company as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Company with a certificate of its non-U.S. Person status on IRS Form W-8BEN or W-8BEN-E.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Company and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Company and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
















	
		
	[NAME OF PARTICIPANT]

	By:
	 

	 
	Name:   

	 
	Title:   

	Date:
	 






[Signature Page to U.S. Tax Compliance Certificate]














EXHIBIT M-2 
TO 
CREDIT AGREEMENT
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes) Reference is made to the Asset-Based Revolving Credit Agreement, dated as of April 3, 2017 (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “Credit Agreement”), by and among Contura Energy, Inc.  (the “Company”), the other Borrowers, the Guarantors party thereto, the Lenders and L/C Issuers party thereto from time to time and Citibank, N.A., as Administrative Agent.  Capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement.
Pursuant to the provisions of Section 3.01 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Company within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to the Company as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN or W-8BEN-E.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
















	
		
	[NAME OF PARTICIPANT]

	By:
	 

	 
	Name:   

	 
	Title:   

	Date:
	 






[Signature Page to U.S. Tax Compliance Certificate]
















EXHIBIT M-3
TO
CREDIT AGREEMENT
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes) Reference is made to the Asset-Based Revolving Credit Agreement, dated as of April 3, 2017 (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “Credit Agreement”), by and among Contura Energy, Inc.  (the “Company”), the other Borrowers, the Guarantors party thereto, the Lenders and L/C Issuers party thereto from time to time and Citibank, N.A., as Administrative Agent.  Capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement.
Pursuant to the provisions of Section 3.01 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Company within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Company as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
















	
		
	[NAME OF PARTICIPANT]

	By:
	 

	 
	Name:   

	 
	Title:   

	Date:
	 






[Signature Page to U.S. Tax Compliance Certificate]












EXHIBIT M-4
TO 
CREDIT AGREEMENT
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)


Reference is made to the Asset-Based Revolving Credit Agreement, dated as of April 3, 2017 (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “Credit Agreement”), by and among Contura Energy, Inc. (the “Company”), the other Borrowers, the Guarantors party thereto, the Lenders and L/C Issuers party thereto from time to time and Citibank, N.A., as Administrative Agent. Capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement.  


Pursuant to the provisions of Section 3.01 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Company within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Company as described in Section 881(c)(3)(C) of the Code.


The undersigned has furnished the Administrative Agent and the Company with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Company and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Company and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. 


Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
















	
		
	[NAME OF PARTICIPANT]

	By:
	 

	 
	Name:   

	 
	Title:   

	Date:
	 






[Signature Page to U.S. Tax Compliance Certificate]