Exhibit 10.1


 


AMENDED AND RESTATED PLEDGE AGREEMENT


(Borrower)


 


THIS
AMENDED AND RESTATED PLEDGE AGREEMENT (as amended, restated, supplemented or
modified from time to time, the “Agreement”), dated as of October 5,
2010, is made and entered into by and between RHINO
RESOURCE PARTNERS LP, a Delaware limited partnership  (the “MLP”), and PNC BANK,
NATIONAL ASSOCIATION, as Agent for itself and the other Lenders
under the Credit Agreement described below (the “Agent”).


 


WHEREAS,
pursuant to that certain Credit Agreement dated as of August 20, 2006 by
and among RHINO ENERGY LLC, a Delaware limited
liability company, formerly known as CAM Holdings LLC (the “Company”)
the Borrower thereunder, the Guarantors from time to time party thereto, the
Lenders from time to time party thereto (the “Lenders”) and the Agent,
as amended by that certain First Amendment to Credit Agreement, dated as of
December 28, 2006; as amended by that certain Second Amendment to Credit
Agreement and Consent, dated as of March 8, 2007; as amended by that
certain Third Amendment to Credit Agreement, dated as of February 29,
2008; as amended by that certain Fourth Amendment to Credit Agreement, dated as
of May 15, 2008; as amended by that certain Fifth Amendment to Credit
Agreement, dated June 1, 2008; as amended by that certain Sixth Amendment
to Credit Agreement and Amendment to Fifth Amendment to Credit Agreement, dated
November 4, 2008; as amended by that certain Seventh Amendment to Credit
Agreement, dated as of March 31, 2009, as amended by that certain Eighth
Amendment to Credit Agreement (the “Eighth Amendment”), dated as of June 30,
2010 (as the same may hereafter from time to time be restated, amended,
modified or supplemented, collectively the “Credit Agreement”), the
Agent and the Lenders have agreed to provide certain Loans (as defined therein)
to and extend other financial accommodations to the Company and the other Loan
Parties; and


 


WHEREAS, Wexford Capital LP
(as successor-by-merger to Wexford Capital LLC) and various affiliates thereof
(the “Wexford Investors”) held 100% of the member interests of the
Company, and the Wexford Investors pledged such member interests to the Agent,
on behalf of the Lenders, pursuant to that certain Pledge Agreement dated August 30,
2006 (the “Existing Pledge Agreement”); and


 


WHEREAS, the Wexford
Investors have transferred, pursuant to a series of transfers (collectively,
the “Borrower Equity Transfer”), all of their member interests in the
Company to the MLP; and


 


WHEREAS,
as part of the security for the Loans, such other financial accommodations and
the other Obligations, and as required by the Eighth Amendment, the membership
interest of the MLP in the Company are to be pledged to the Agent for the
benefit of itself and the Lenders in accordance herewith; and


 


WHEREAS,
the MLP owns one hundred percent (100%) of the outstanding membership interest
of the Company as set forth on Schedule A, attached hereto and made
a part hereof; and


 

















 


WHEREAS,
this Agreement replaces and amends and restates in its entirety the Existing
Pledge Agreement.


 


NOW,
THEREFORE, intending to be legally bound hereby, the parties hereto hereby
agree as follows:


 


1.             Defined Terms.


 


(a)           Except as otherwise expressly provided herein, capitalized
terms used in this Agreement shall have the respective meanings assigned to
them in the Credit Agreement.  Where
applicable and except as otherwise expressly provided herein, terms used herein
(whether or not capitalized) shall have the respective meanings assigned to
them in the Uniform Commercial Code as enacted in each applicable jurisdiction
and as may be amended from time to time (the “Code”).


 


(b)           “Pledged Collateral” shall mean and include the
following:  (i) the member interests
listed on Schedule A and made a part hereof, and all rights and
privileges pertaining thereto, including (A) all member interests and
additional member interests receivable in respect of or in exchange for such
member interests, (B) all rights to subscribe for member interests
incident to or arising from ownership of such member interests, (C) all
cash, interest, stock and other dividends or distributions paid or payable on
such member interests, and (D) all books and records pertaining to the
foregoing, including all ownership record and transfer books, (ii) any and
all other member interests in the Company, in any other Loan Party and/or in
any Subsidiary of any Loan Party, whether now existing or hereafter formed,
created, acquired or otherwise, which may be hereafter pledged by the MLP to
the Agent to secure the Secured Obligations (as hereinafter defined) of the
Company and the other Loan Parties, and all rights and privileges pertaining
thereto, including all member interests and additional member interests
receivable in respect of or in exchange for such member interests, all rights
to subscribe for member interests incident to or arising from ownership of such
member interests, all cash, interest, stock, member interests and other
dividends or distributions paid or payable on such member interests, and all books
and records pertaining to the foregoing, and (iii) whatever is received
when any of the foregoing is sold, exchanged or otherwise disposed of,
including any proceeds as such term is defined in the Code, thereof.  Notwithstanding the foregoing, any dividend
or distribution made by the Borrower in compliance with the terms of the Credit
Agreement and Section 5(m) below and any proceeds thereof shall, on
and after the date of such dividend or distribution, once made, no longer
constitute Pledged Collateral.


 


(c)           “Secured Obligations” shall mean and include the
full and punctual payment and performance when due (whether on demand, at
stated maturity, by acceleration, or otherwise and including any amounts which
would become due but for the operation of an automatic stay under the federal
bankruptcy code of the U.S. or any similar laws of any country or jurisdiction)
of: (i) all Obligations, including all obligations, liabilities, and
indebtedness from time to time of the Company or any other Loan Party to the
Agent or any of the Lenders or any Affiliate of any Lender or the Agent under
or in connection with the Credit Agreement or any other Loan Document, any
Lender-Provided Interest Rate Hedge or any Lender-Provided Commodity Hedge,
whether for principal, interest, fees, indemnities, expenses, or otherwise, and
all


 


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refinancings or refundings thereof, whether such
obligations, liabilities, or indebtedness are direct or indirect, secured or
unsecured, joint or several, absolute or contingent, due or to become due,
whether for payment or performance, now existing or hereafter arising (and
including obligations, liabilities, and indebtedness arising or accruing after
the commencement of any Insolvency Proceeding with respect to the Company or
any other Loan Party or which would have arisen or accrued but for the
commencement of such Insolvency Proceeding (including interest after default),
even if the claim for such obligation, liability, or indebtedness is not enforceable
or allowable in such Insolvency Proceeding, and including all Obligations,
liabilities, and indebtedness arising from any extensions of credit under or in
connection with the Loan Documents, any Lender-Provided Interest Rate Hedges or
any Lender-Provided Commodity Hedges from time to time, regardless whether any
such extensions of credit are in excess of the amount committed under or
contemplated by the Loan Documents, any Lender-Provided Interest Rate Hedges or
any Lender-Provided Commodity Hedges or are made in circumstances in which any
condition to extension of credit is not satisfied), (ii) any obligation or
liability of any of the Loan Parties arising out of overdrafts on deposits or
other accounts or out of electronic funds (whether by wire transfer or through
automated clearing houses or otherwise) or out of the return unpaid of, or
other failure of the Agent or any Lender to receive final payment for, any
check, item, instrument, payment order or other deposit or credit to a deposit
or other account, or out of the Agent’s or any Lender’s non-receipt of or
inability to collect funds or otherwise not being made whole in connection with
depository or other similar arrangements, and (iii) any amendments,
extensions, renewals and increases of or to any of the foregoing.


 


2.             Grant of Security Interests.


 


(a)           To secure on a first priority perfected basis the payment
and performance of all Secured Obligations in full, the MLP hereby grants to
the Agent a continuing first priority security interest under the Code in and
hereby pledges to the Agent, for the benefit of each of the Lenders and the
Agent, any IRH Provider or CH Provider, all of the MLP’s now existing and
hereafter acquired or arising right, title and interest in, to, and under the
Pledged Collateral wherever located.


 


(b)           Upon the execution and delivery of this Agreement, the MLP
shall deliver to and deposit with the Agent in pledge, all of the MLP’s
certificates, instruments or other documents comprising or evidencing the
Pledged Collateral, together with undated stock powers, powers of attorney,
instruments or other documents signed in blank by the MLP.  In the event that the MLP should ever acquire
or receive certificates, securities, instruments or other documents evidencing
the Pledged Collateral, the MLP shall deliver to and deposit with the Agent in
pledge, all such certificates, securities, instruments or other documents which
evidence the Pledged Collateral, together with undated powers or endorsements
signed in blank by the MLP.


 


3.             Further Assurances.


 


Prior
to or concurrently with the execution of this Agreement, and thereafter at any
time and from time to time upon reasonable request of the Agent, the MLP shall
execute and deliver to the Agent all financing statements, continuation
financing statements, termination statements, assignments, certificates and
documents of title, affidavits, reports, notices, schedules of account,


 


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letters
of authority, further pledges, powers of attorney and all other documents
(collectively, the “Security Documents”) which the Agent may request, in
form  satisfactory to the Agent, and take
such other action which the Agent may request, to perfect and continue
perfected and to create and maintain the first priority status of the Agent’s
security interest in the Pledged Collateral and to fully consummate the
transactions contemplated under the Credit Agreement, the other Loan Documents
and this Agreement.  The MLP hereby
irrevocably makes, constitutes and appoints the Agent (and any of the Agent’s
officers or employees or agents designated by the Agent) as the MLP’s true and
lawful attorney with power to sign the name of the MLP on all or any of the
Security Documents which the Agent determines must be executed, filed, recorded
or sent in order to perfect or continue perfected the Agent’s security interest
in the Pledged Collateral in any jurisdiction. 
Such power, being coupled with an interest, is irrevocable until all of
the Secured Obligations have been indefeasibly in full paid and the Commitments
have terminated.


 


4.             Representations and Warranties.


 


The
MLP hereby represents and warrants to the Agent as follows:


 


(a)           The MLP has, and will continue to have (or, in the case of
after-acquired Pledged Collateral, at the time the MLP acquires rights in such
Pledged Collateral, will have and will continue to have), title to the Pledged
Collateral, free and clear of all Liens other than those in favor of the Agent
for the Lenders and the Agent.


 


(b)           The member interests constituting the Pledged Collateral
have been duly authorized and validly issued to the MLP and are fully paid and
nonassessable.


 


(c)           The security interests in the Pledged Collateral granted
hereunder are valid, perfected and of first priority, subject to the Lien of no
other Person.  The delivery to the Agent
of the documents, if any, referred to in Section 2(b) above and the
proper filing of the financing statements relating to the Pledged Collateral in
the jurisdiction of the state of formation of the MLP will perfect and
establish the first priority of the Agent’s security interest in the Pledged
Collateral.


 


(d)           Except to the extent provided in the Partnership
Agreement, there are no restrictions upon the transfer of the Pledged
Collateral and the MLP has the power and authority and right to transfer the
Pledged Collateral owned by the MLP free of any encumbrances and without
obtaining the consent of any other Person. 
There are no restrictions or limits on the rights or the ability of the Agent
to transfer the Pledged Collateral upon the exercise of the Agent’s rights and
remedies under the Loan Documents with respect thereto which would in any way
affect the ability of the Agent to foreclose on, or realization upon, the
Pledged Collateral.


 


(e)           The MLP has all necessary power to execute, deliver and
perform this Agreement.


 


(f)            As of the date hereof, there are no actions, suits, or
proceedings pending or, to the MLP’s best knowledge after due inquiry,
threatened against or affecting the MLP with respect to the Pledged Collateral,
at law or in equity or before or by any Official Body, and the MLP is not


 


4

















 


in default with respect to any judgment, writ,
injunction, decree, rule or regulation which could adversely affect the
MLP’s performance hereunder.


 


(g)           This Agreement has been duly executed and delivered and
constitutes the valid and legally binding obligation of the MLP, enforceable in
accordance with its terms, except to the extent that enforceability of this
Agreement may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar Laws affecting the enforceability of creditors’
rights generally or limiting the right of specific performance.


 


(h)           Neither the execution and delivery by the MLP of this
Agreement, nor the compliance with the terms and provisions hereof, will
violate any provision of any Law or conflict with or result in a breach of any
of the terms, conditions or provisions of any judgment, order, injunction,
decree or ruling of any Official Body to which the MLP is subject or any
provision of any agreement, understanding or arrangement to which the MLP is a
party or by which the MLP is bound.


 


(i)            The exact legal name of the MLP is as set forth on the
signature page hereto.


 


(j)            The state of formation of the MLP is as set forth on Schedule
B, attached hereto and made a part hereof.


 


(k)           The chief executive office of the MLP is as set forth on Schedule
B, attached hereto and made a part hereof.


 


(l)            All rights of the MLP in connection with its ownership of
the Company are evidenced and governed solely by the certificates, instruments
or other documents evidencing ownership and organizational documents of the
Company and no other member or other similar agreements are applicable to any
of the Pledged Collateral, and no such certificate, instrument or other
document provides that any member interest or other intangible ownership
interest, constituting Pledged Collateral, is a “Security” within the meaning
of and subject to Article 8 of the Code; and, the organizational documents
of the Company contain no restrictions on the rights of its members other than
those that normally would apply to a company organized under the laws of the
jurisdiction of organization of the Company.


 


5.             General Covenants.


 


The
MLP hereby covenants and agrees as follows with respect to the Pledged
Collateral pledged by the MLP:


 


(a)           The MLP shall do all reasonable acts that may be necessary
and appropriate to maintain, preserve and protect the Pledged Collateral and
shall be responsible for the risk of loss of, damage to, or destruction of the
Pledged Collateral, unless such loss is the result of the gross negligence or
willful misconduct of the Agent.  The MLP
shall notify the Agent in writing ten (10) days prior to any change in the
address of the chief executive office set forth on Schedule B.


 


(b)           The MLP shall appear in and defend any action or
proceeding of which the MLP is aware which could reasonably be expected to
affect the MLP’s title to, or the Agent’s interest


 


5

















 


in, the Pledged Collateral and the proceeds thereof;
provided, however, that the MLP may settle such actions or
proceedings with respect to the Pledged Collateral with the consent of the
Agent.


 


(c)           The MLP shall, and shall cause the Company to, keep
separate, accurate and complete records of the Pledged Collateral owned by the
MLP, disclosing the Agent’s security interest hereunder.


 


(d)           The MLP shall comply with all Laws applicable to the
Pledged Collateral unless such noncompliance would not individually or in the
aggregate materially impair the use or value of the Pledged Collateral or the
Agent’s rights hereunder.


 


(e)           The MLP shall pay any and all taxes, duties, fees or
imposts of any nature imposed by any Official Body on any of the Pledged
Collateral, except to the extent contested in good faith by appropriate
proceedings.


 


(f)            The MLP shall permit the Agent, its officers, employees
and agents at reasonable times to inspect all books and records related to the
Pledged Collateral.


 


(g)           To the extent, following the date hereof, the MLP acquires
member interests in the Company or any of the rights, property or member
interests described in the definition of, and then constituting, Pledged
Collateral with respect to the Company, such rights, property or member
interests or securities shall be subject to the terms hereof and, upon such
acquisition, shall be deemed to be hereby pledged to the Agent, and the MLP thereupon
shall deliver all such member interests and other ownership interests together
with an updated Schedule A, to the Agent together with all such
control agreements, financing statements, and any other documents necessary to
implement the provisions and purposes of this Agreement as the Agent may
request.


 


(h)           The MLP will not change its state of formation without
providing thirty (30) days prior written notice to the Agent.


 


(i)            The MLP will not change it’s name without providing
thirty (30) days prior written notice to the Agent.


 


(j)            During the term of this Agreement, the MLP shall not
sell, assign, replace, retire, transfer or otherwise dispose of the Pledged
Collateral.


 


(k)           The MLP shall at any time and from time to time take such
steps as the Agent may reasonably request as are necessary for the Agent to
insure the continued perfection of the Agent’s and the Lenders’ security
interest in the Pledged Collateral with the same priority required hereby and
the preservation of its rights therein.


 


(l)            During the term of this Agreement, the MLP shall not
permit the Company to treat any uncertificated ownership interests as
securities which are subject to Article 8 of the Code.


 


(m)          Notwithstanding the security interest in the Pledged
Collateral in favor of the Agent, dividends or distributions by the Company may
be made to the MLP in accordance with the Credit Agreement and, once made,
shall no longer constitute Pledged Collateral, provided


 


6

















 


that no Event of Default or Potential Default shall
have occurred or exist immediately prior to, at the time of, or after giving
effect to such dividend or distribution. 
Any dividend or distribution by the Company to the MLP shall be made in
accordance with the Credit Agreement and only if no Event of Default or
Potential Default shall have occurred or exist immediately prior to, at the
time of, or after giving effect to such dividend or distribution; and if any
cash-only dividend or distribution has been made in violation hereof or thereof
or if any Event of Default or Potential Default exists immediately prior to, at
the time of the making of, or after giving effect to such such dividend or
distribution, then the MLP hereby agrees to immediately remit the full amount
of such dividend or distribution to the Agent.


 


6.             Other Rights With Respect to Pledged Collateral.


 


In
addition to the other rights with respect to the Pledged Collateral granted to
the Agent hereunder, at any time and from time to time, after and during the
continuation of an Event of Default, the Agent, at its option and at the
expense of the MLP, may: (a) transfer into its own name, or into the name
of its nominee, all or any part of the Pledged Collateral, thereafter receiving
all dividends, income or other distributions upon the Pledged Collateral;
(b) take control of and manage all or any of the Pledged Collateral;
(c) apply to the payment of any of the Secured Obligations, whether any be
due and payable or not, any moneys, including cash dividends and income from
any Pledged Collateral, now or hereafter in the hands of the Agent, any IRH
Provider or any CH Provider, on deposit or otherwise, belonging to the MLP, as
the Agent, in its sole discretion, shall determine; and (d) do anything
which the MLP is required but fails to do hereunder; provided, however,
the Agent and the Lenders may not exercise any post-default rights granted to
the Agent and the Lenders pursuant to clause (a) or (b) of this Section with
respect to the MLP unless any such Event of Default leading to such
post-default rights granted pursuant to clause (a) or (b) of this Section shall
continue unremedied for a period of thirty (30) days after the Agent gives
written notice of such Event of Default to the MLP, so that the MLP has an opportunity
to cure such Event of Default.


 


7.             Additional Remedies Upon Event of Default.


 


Upon
the occurrence of any Event of Default and while such Event of Default shall be
continuing, the Agent shall have, in addition to all rights and remedies of a
secured party under the Code or other applicable Law, and in addition to its
rights under, but subject to the proviso set forth in, Section 6 above and
under the other Loan Documents, the following rights and remedies:


 


(a)           The Agent may, after ten (10) days’ advance notice to
the MLP, sell, assign, give an option or options to purchase or otherwise
dispose of the Pledged Collateral or any part thereof at public or private
sale, at any of the Agent’s offices or elsewhere, for cash, on credit or for
future delivery, and upon such other terms as the Agent may deem commercially
reasonable.  The MLP agrees that ten (10) days’
advance notice 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 Agent shall not be obligated to make any
sale of Pledged Collateral regardless of notice of sale having been given.  The 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


 


7

















 


made at the time and place to which it was so
adjourned.  The MLP recognizes that the
Agent may be compelled to resort to one or more private sales of the Pledged
Collateral to a restricted group of purchasers who will be obliged to agree,
among other things, to acquire such member interests for their own account for
investment and not with a view to the distribution or resale thereof.


 


(b)           The proceeds of any collection, sale or other disposition
of the Pledged Collateral of  the MLP, or
any part thereof, shall, after the Agent has made all deductions of expenses,
including attorneys’ fees and other expenses incurred in connection with
repossession, collection, sale or disposition of such Pledged Collateral or in
connection with the enforcement of the Agent’s rights with respect to the
Pledged Collateral including in any Insolvency Proceedings, be applied against
the Secured Obligations, whether or not all the same be then due and payable,
as follows:


 


(i)            first, to the Secured Obligations and to reimburse the
Agent for out-of-pocket costs, expenses and disbursements, including reasonable
attorneys’ fees and legal expenses, incurred by the Agent in connection with
realizing on the Pledged Collateral or collection of any obligation of the
Company under any of the Loan Documents, including advances made subsequent to
an Event of Default by the Agent for the reasonable maintenance, preservation,
protection or enforcement of, or realization upon, the Pledged Collateral,
including advances for taxes, insurance, repairs, and the like, and reasonable
expenses incurred to sell or otherwise realize on, or prepare for sale of or
other realization on, any of the Pledged Collateral, in such order as the Agent
may determine in its discretion; and


 


(ii)           the balance, if any, as required by Law.


 


8.             Agent’s Duties.


 


The
powers conferred on the Agent hereunder are solely to protect its interest in
the Pledged Collateral and shall not impose any duty upon it to exercise any
such powers.  Except for the safe custody
of any Pledged Collateral in its possession and the accounting for moneys
actually received by it hereunder, the Agent shall have no duty as to any
Pledged Collateral or as to the taking of any necessary steps to preserve
rights against prior parties or any other rights pertaining to any Pledged
Collateral.


 


9.             No Waiver; Cumulative Remedies.


 


No
failure to exercise, and no delay in exercising, on the part of the Agent, any
right, power or privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or privilege hereunder
preclude any further exercise thereof or the exercise of any other right, power
or privilege.  The remedies herein
provided are cumulative and not exclusive of any remedies provided under the
other Loan Documents or by Law.  The MLP
waives any right to require the Agent to proceed against any other Person or to
exhaust any of the Pledged Collateral or other security for the Secured
Obligations or to pursue any remedy in the Agent’s power.


 


8
















 


10.           Taxes.


 


(a)           No Deductions. 
All payments and collections made by or from the MLP under this
Agreement shall be made or received free and clear of and without deduction for
any present or future taxes, levies, imposts, deductions, charges, or withholdings,
and all liabilities with respect thereto, excluding taxes imposed on the net
income of Agent and all income and franchise taxes of the United States
applicable to Agent (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings, and liabilities being hereinafter referred to as “Taxes”).  If the MLP shall be required by law to deduct
any Taxes from or in respect of any sum payable or any collection made under
this Agreement, (i) the sum payable or collectable shall be increased as may
be necessary so that after making all required deductions (including deductions
applicable to additional sums payable or collectable under this Subsection)
Agent receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the MLP shall make such deductions and
(iii) the MLP shall timely pay the full amount deducted to the relevant
tax authority or other authority in accordance with applicable law;


 


(b)           Stamp Taxes. 
In addition, the MLP acknowledges that the Pledged Collateral secures
payment of all present and future stamp or documentary taxes and any other
excise or property taxes, charges, or similar levies which arise from any
payment or collection made hereunder or from the execution, delivery, or
registration of, or otherwise with respect to, this Agreement (hereinafter
referred to as “Other Taxes”);


 


(c)           Indemnification for Taxes Paid by Agent.  The MLP acknowledges that the Pledged
Collateral secures the full amount of Taxes or Other Taxes (including, without limitation,
any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under
this Section 10) paid by Agent and any liability (including penalties,
interest, and expenses) arising therefrom or with respect thereto, whether or
not such Taxes or Other Taxes were correctly or legally asserted;


 


(d)           Certificate. 
In the event the MLP pays any Taxes or Other Taxes, within 30 days after
the date of any such payment, the MLP shall furnish to Agent, the original or a
certified copy of a receipt evidencing payment thereof;


 


(e)           Survival. 
Without prejudice to the survival of any other agreement of the MLP
hereunder, the agreements and obligations of the MLP contained in clauses (a) through
(d) directly above shall survive the payment in full of principal and
interest under any Note and the termination of the Credit Agreement.


 


11.           Assignment.


 


All
rights of the Agent under this Agreement shall inure to the benefit of its
successors and assigns.  All obligations
of the MLP shall bind the MLP’s successors, assigns, heirs, executors and
personal representatives; provided, however, the MLP may not
assign or transfer any of its rights and obligations hereunder or any interest
herein and any such purported assignment or transfer shall be null and void.


 


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12.           Severability.


 


Any
provision of this Agreement which shall be held invalid or unenforceable shall
be ineffective without invalidating the remaining provisions hereof.


 


13.           Governing Law.


 


This
Agreement shall be construed in accordance with and governed by the internal
laws of the Commonwealth of Pennsylvania without regard to its conflicts of law
principles, except to the extent the validity or perfection of the security
interests or the remedies hereunder in respect of any Pledged Collateral are
governed by the law of a jurisdiction other than the Commonwealth of
Pennsylvania.


 


14.           Notices.


 


All
notices, requests, demands, directions and other communications (collectively, “notices”)
given to or made upon any party hereto under the provisions of this Agreement
shall be by telephone or in writing (including telex, facsimile or electronic
transmission (i.e., “e-mail”) communication) unless otherwise expressly
permitted hereunder and shall be delivered or sent by telex, facsimile or
electronic transmission to the respective parties at the addresses and numbers
set forth below or in accordance with any subsequent unrevoked written
direction from any party to the others. 
All notices shall, except as otherwise expressly herein provided, be
effective in the case of telex, facsimile or electronic transmission, when
received, in the case of hand-delivered notice, when hand delivered, or in the
case of telephone when telephoned, provided, however, that in order to be effective,
telephonic notices must be confirmed in writing no later than the next day by
letter, facsimile, telex or email.


 


The
Agent:


 


	
  PNC Bank, National Association, as Agent

  
	
  One PNC Plaza

  
	
  249 Fifth Avenue

  
	
  Pittsburgh, Pennsylvania 15222

  
	
  Attention:

  	
  Richard Munsick

  
	
  Telephone:

  	
  (412) 762-4299

  
	
  Telecopy:

  	
  (412) 762-6484

  
	
  Email:

  	
  richard.munsick@pnc.com

  



 


The
MLP:


 


	
  424 Lewis Hargett Circle, Suite 250

  
	
  Lexington, KY 40503

  
	
  Attention: Joseph R. Miller

  
	
  Telephone:

  	
  859-389-6500

  
	
  Telecopy:

  	
  859-389-6588

  
	
  Email:

  	
  jmiller@rhinoenergyllc.com

  



 


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with a copy to:


 


	
  424 Lewis Hargett Circle,
  Suite 250

  
	
  Lexington, KY 40503

  
	
  Attention: Richard A Boone

  
	
  Telephone:

  	
  859-389-6500

  
	
  Telecopy:

  	
  859-389-6588

  
	
  Email:

  	
  rboone@rhinoenergyllc.com

  



 


15.           Specific Performance.


 


The
MLP acknowledges and agrees that, in addition to the other rights of the Agent
hereunder and under the other Loan Documents, because the Agent’s remedies at
law for failure of the MLP to comply with the provisions hereof relating to the
Agent’s rights: (i) to inspect the books and records related to the
Pledged Collateral, (ii) to receive the various notifications the MLP is
required to deliver hereunder, (iii) to obtain copies of agreements and
documents as provided herein with respect to the Pledged Collateral,
(iv) to enforce the provisions hereof pursuant to which the MLP has
appointed the Agent the MLP’s attorney-in-fact, and (v) to enforce the Agent’s
remedies hereunder, would be inadequate and that any such failure would not be
adequately compensable in damages, the MLP agrees that each such provision
hereof may be specifically enforced.


 


16.           Voting Rights in Respect of the Pledged Collateral.


 


So
long as no Event of Default shall have occurred and be continuing under the
Credit Agreement, the MLP may exercise any and all voting and other consensual
rights pertaining to the Pledged Collateral or any part thereof for any purpose
not inconsistent with the terms of this Agreement or the other Loan Documents; provided,
however, that the MLP will not exercise and will refrain from exercising
any such rights, as the case may be, if such action would have a material
adverse effect on the value of any Pledged Collateral.  Without limiting the generality of the
foregoing and in addition thereto, the MLP shall not vote to enable, or take
any other action to permit, the Company to issue any additional member
interests or other ownership interests of any nature or to issue any member
interests convertible into or granting the right to purchase or exchange for
any member interests or other ownership interests of any nature of the Company
or to enter into any agreement or undertaking restricting the right or ability
of the MLP or the Agent to sell, assign or transfer any of the Pledged
Collateral.


 


17.           Consent to Jurisdiction; Waiver of Jury Trial.


 


THE MLP HEREBY IRREVOCABLY CONSENTS TO THE
NONEXCLUSIVE JURISDICTION OF THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY AND
THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA, AND
WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL
SUCH SERVICE OF PROCESS BE MADE BY


 


11

















 


CERTIFIED
OR REGISTERED MAIL DIRECTED TO THE MLP AT THE ADDRESSES PROVIDED FOR IN
SECTION 14 ABOVE, AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON
ACTUAL RECEIPT THEREOF.  THE MLP WAIVES
ANY OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION INSTITUTED AGAINST IT AS
PROVIDED HEREIN AND AGREES NOT TO ASSERT ANY DEFENSE BASED ON LACK OF
JURISDICTION OR VENUE.  THE MLP HEREBY
WAIVES TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY
KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT TO THE FULL EXTENT PERMITTED
BY LAW.


 


18.           Entire Agreement; Amendments.


 


This
Agreement amends and restates the Existing Pledge Agreement in its entirety,
constitutes the entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior agreements relating to a grant
of a security interest in the Pledged Collateral by the MLP.  This Agreement may not be amended or
supplemented except by a writing signed by the Agent and the MLP.


 


19.           Counterparts; Telecopy Signatures.


 


This
Agreement may be executed in any number of counterparts, and by different
parties hereto in separate counterparts, each of which when so executed shall
be deemed an original and all of which taken together shall constitute but one
and the same agreement.  The MLP
acknowledges and agrees that a telecopy or electronic (i.e., “e-mail”)
transmission to the Agent or any Lender of the signature pages hereof
purporting to be signed on behalf of the MLP shall constitute effective and
binding execution and delivery hereof by the MLP.


 


20.           Descriptive Headings.


 


The
descriptive headings which are used in this Agreement are for the convenience
of the parties only and shall not affect the meaning of any provision of this
Agreement.


 


21.           Limitation of Liability.


 


No
claim may be made by the MLP against any Lender, the Agent or any of their respective
directors, officers, employees, agents, attorneys or Affiliates, or any of
them, for any special, indirect or consequential damages or, to the fullest
extent permitted by Law, for any punitive damages in respect of any claim or
cause of action (whether based on contract, tort, statutory liability, or any
other ground) based on, arising out of or related to this Agreement or the
transactions contemplated hereby or thereby or any act, omission or event
occurring in connection therewith, including the negotiation, documentation, or
administration of this Agreement and the MLP hereby waives, releases and agrees
never to sue upon any claim for any such damages, whether such claim now exists
or hereafter arises and whether or not it is now known or suspected to exist in
its favor.


 


12

















 


22.           Construction.


 


The
rules of construction contained in Section 1.2 [Construction] of the
Credit Agreement shall apply to this Agreement.


 


[SIGNATURE PAGES FOLLOW]


 


13

















 


[SIGNATURE PAGE TO AMENDED AND RESTATED PLEDGE AGREEMENT (Borrower)]


 


IN
WITNESS WHEREOF, intending to be legally bound, the parties hereto have caused
this Agreement to be duly executed as of the date first above written.


 


	
   

  	
  AGENT:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PNC BANK, NATIONAL ASSOCIATION, a national
  banking association, as Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard C. Munsick

  
	
   

  	
   

  	
  Name: Richard C. Munsick

  
	
   

  	
   

  	
  Title: Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MLP:

  
	
   

  	
   

  
	
   

  	
  RHINO RESOURCE PARTNERS LP, a Delaware limited
  partnership

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Rhino GP LLC, a Delaware

  
	
   

  	
   

  	
   

  	
  limited liability company, its general partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Richard A. Boone

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Richard A. Boone

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Vice President and

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Chief Financial Officer

  



 

















 


ACKNOWLEDGEMENT AND CONSENT


 


The
undersigned hereby acknowledges receipt of a copy of the Amended and Restated
Pledge Agreement, dated as of October     , 2010, made
by RHINO RESOURCE PARTNERS LP, a Delaware limited partnership (the “MLP”)
for the benefit of PNC BANK, NATIONAL ASSOCIATION, as Agent (as amended,
restated, supplemented or modified from time to time, the “Pledge Agreement”).  The undersigned, intending to be legally
bound hereby, agrees for the benefit of the Agent and the Lenders as follows:


 


1.             The undersigned will be bound by the terms of the Pledge
Agreement and will comply with such terms insofar as such terms are applicable
to the undersigned, including those terms in Section 17 of the Pledge
Agreement.


 


2.             The undersigned will notify the Agent promptly in
writing of the occurrence of any of the events described in Section 5(g) of
the Pledge Agreement.


 


3.             The terms of Section 3 of the Pledge Agreement
shall apply to it, mutatis mutandis, with respect to all actions that
may facilitate, in the reasonable judgment of the Agent, the carrying out of Section 3
of the Pledge Agreement.


 


4.             To the extent that the undersigned has or hereafter may
acquire any immunity from the jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution, or otherwise) with respect to itself
or its property, the undersigned hereby irrevocably waives such immunity in
respect of its obligations under the Pledge Agreement and any other document or
agreement executed in connection therewith, and the undersigned agrees that it
will not raise or claim any such immunity at or in respect of any such action
or proceeding.


 


5.             The undersigned acknowledges and agrees that any notices
sent to the MLP regarding any of the Pledged Collateral shall also be sent to
the Agent in the manner and at the address of Agent as indicated in Section 14
of the Pledge Agreement.


 


[SIGNATURE PAGE FOLLOWS]


 

















 


[SIGNATURE PAGE - ACKNOWLEDGMENT 

AND CONSENT TO AMENDED AND RESTATED PLEDGE AGREEMENT (BORROWER)]


 


	
   

  	
  RHINO ENERGY LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard A. Boone

  
	
   

  	
   

  	
  Name: Richard A. Boone

  
	
   

  	
   

  	
  Title: Senior Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notices:

  
	
   

  	
   

  
	
   

  	
  424 Lewis Hargett Circle, Suite 250

  
	
   

  	
  Lexington, KY 40503

  
	
   

  	
  Attention: Joseph R. Miller

  
	
   

  	
  Telephone: 859-389-6500

  
	
   

  	
  Telecopy:  859-389-6588

  
	
   

  	
  Email: jmiller@rhinoenergyllc.com

  
	
   

  	
   

  
	
   

  	
  with a copy to:

  
	
   

  	
   

  
	
   

  	
  424 Lewis Hargett Circle, Suite 250

  
	
   

  	
  Lexington, KY 40503

  
	
   

  	
  Attention: Richard A Boone

  
	
   

  	
  Telephone: 859-389-6500

  
	
   

  	
  Telecopy: 859-389-6588

  
	
   

  	
  Email: rboone@rhinoenergyllc.com

  



 

















 


SCHEDULE A


TO


AMENDED AND RESTATED PLEDGE AGREEMENT (Borrower)


 


Description of Pledged
Collateral


 


	
  Member

  	
   

  	
  Description of Pledged

  Collateral and Certificate

  Number (if any)

  	
   

  	
  Percentage of

  Ownership

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  RHINO
  RESOURCE PARTNERS LP

  	
   

  	
  100%
  of membership interests of RHINO ENERGY LLC

  	
   

  	
  100

  	
  %

  



 

















 


SCHEDULE B


TO


AMENDED AND RESTATED PLEDGE AGREEMENT (Borrower)


 


Addresses for Notices to MLP


 


	
  Name and Jurisdiction of Formation

  	
   

  	
  Mailing Address and Chief

  Executive Office

  
	
   

  	
   

  	
   

  
	
  RHINO
  RESOURCE PARTNERS LP, a Delaware limited partnership

  	
   

  	
  424
  Lewis Hargett Circle

  Suite 250

  Lexington, KY 40503

  Attention: Joseph R. Miller

  Telephone: 859-389-6500

  Telecopy: 859-389-6588

  Email: jmiller@rhinoenergyllc.com

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with
  a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  424
  Lewis Hargett Circle, Suite 250

  Lexington, KY 40503

  Attention: Richard A Boone

  Telephone: 859-389-6500

  Telecopy: 859-389-6588

  Email: rboone@rhinoenergyllc.com