Exhibit
10.1


 


EXECUTION COPY


 


 




 





 


CREDIT AGREEMENT


 


dated as of


 


November 25, 2009


 


among


 


CLOUD PEAK ENERGY
RESOURCES LLC


 


the LENDERS party hereto,


 


the ISSUING BANKS party
hereto,


 


and


 


MORGAN STANLEY SENIOR
FUNDING, INC.,

as Administrative Agent and Swingline Lender








 


MORGAN STANLEY SENIOR
FUNDING, INC., CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH and RBC CAPITAL MARKETS,

as Joint Lead Arrangers and Joint Bookrunners


 


CREDIT SUISSE AG, CAYMAN
ISLANDS BRANCH and RBC CAPITAL MARKETS,


as Joint Syndication Agents


 


CALYON NEW YORK BRANCH
and JPMORGAN CHASE BANK, N.A.,

and

THE BANK OF NOVA SCOTIA, SOCIETE GENERALE and WELLS FARGO BANK, NATIONAL
ASSOCIATION,


as Joint Documentation
Agents




 





 

















 


	
  TABLE
  OF CONTENTS

  
	
   

  	
   

  	
   

  



 


	
   

  	
  PAGE

  
	
   

  	
   

  
	
  ARTICLE 1

  
	
  DEFINITIONS

  
	
   

  	
   

  
	
  Section 1.01.
  Defined Terms

  	
  2

  
	
  Section 1.02.
  Classification of Loans and Borrowings

  	
  36

  
	
  Section 1.03.
  Terms Generally

  	
  36

  
	
  Section 1.04.
  Accounting Terms

  	
  37

  
	
   

  	
   

  
	
  ARTICLE 2

  
	
  THE CREDITS

  
	
   

  	
   

  
	
  Section 2.01.
  Commitments

  	
  37

  
	
  Section 2.02.
  Loans and Borrowings

  	
  37

  
	
  Section 2.03.
  Requests for Revolving Borrowings

  	
  38

  
	
  Section 2.04.
  Swingline Loans

  	
  38

  
	
  Section 2.05.
  Letters of Credit

  	
  40

  
	
  Section 2.06.
  Funding of Borrowings

  	
  48

  
	
  Section 2.07.
  Interest Elections

  	
  49

  
	
  Section 2.08.
  Termination and Reduction of Commitments

  	
  50

  
	
  Section 2.09.
  Repayment of Loans; Evidence of Debt

  	
  51

  
	
  Section 2.10.
  Prepayment of Loans

  	
  51

  
	
  Section 2.11.
  Fees

  	
  52

  
	
  Section 2.12.
  Interest

  	
  53

  
	
  Section 2.13.
  Alternate Rate of Interest

  	
  54

  
	
  Section 2.14.
  Increased Costs

  	
  54

  
	
  Section 2.15.
  Break Funding Payments

  	
  56

  
	
  Section 2.16.
  Taxes

  	
  56

  
	
  Section 2.17.
  Payments Generally; Pro Rata Treatment; Sharing of Set-offs

  	
  58

  
	
  Section 2.18.
  Mitigation Obligations; Replacement of Lenders

  	
  60

  
	
  Section 2.19.
  Optional Increase in Commitments

  	
  61

  
	
  Section 2.20.
  Defaulting Lenders

  	
  62

  
	
   

  	
   

  
	
  ARTICLE 3

  
	
  REPRESENTATIONS
  AND WARRANTIES

  
	
   

  	
   

  
	
  Section 3.01. Organization;
  Powers

  	
  63

  
	
  Section 3.02. Authorization;
  Enforceability

  	
  64

  
	
  Section 3.03. Governmental
  Approvals; No Conflicts

  	
  64

  
	
  Section 3.04. Financial
  Statements; No Material Adverse Change

  	
  64

  
	
  Section 3.05. Properties

  	
  65

  
	
  Section 3.06. Litigation
  and Environmental Matters

  	
  67

  
	
  Section 3.07. Compliance
  with Laws and Agreements

  	
  67

  
	
  Section 3.08. Investment
  Company Status; Regulatory Restrictions on Borrowing

  	
  68

  
	
  Section 3.09. Taxes

  	
  68

  



 

















 


	
  Section 3.10. ERISA

  	
  68

  
	
  Section 3.11. Disclosure

  	
  69

  
	
  Section 3.12. Subsidiaries

  	
  69

  
	
  Section 3.13. Insurance

  	
  69

  
	
  Section 3.14. Labor
  Matters

  	
  69

  
	
  Section 3.15. Solvency

  	
  70

  
	
  Section 3.16.
  Use of Proceeds

  	
  70

  
	
   

  	
   

  
	
  ARTICLE 4

  
	
  CONDITIONS

  
	
   

  	
   

  
	
  Section 4.01. Effective
  Date

  	
  70

  
	
  Section 4.02. Each
  Credit Event

  	
  72

  
	
   

  	
   

  
	
  ARTICLE 5

  
	
  AFFIRMATIVE
  COVENANTS

  
	
   

  	
   

  
	
  Section 5.01. Financial
  Statements and Other Information

  	
  73

  
	
  Section 5.02. Notice
  of Material Events

  	
  74

  
	
  Section 5.03. Information
  Regarding Collateral

  	
  75

  
	
  Section 5.04. Existence;
  Conduct of Business

  	
  75

  
	
  Section 5.05. Payment
  of Obligations

  	
  75

  
	
  Section 5.06. Maintenance
  of Real Property

  	
  75

  
	
  Section 5.07. Maintenance
  of Personal Property

  	
  76

  
	
  Section 5.08. Insurance

  	
  76

  
	
  Section 5.09. Casualty
  and Condemnation

  	
  77

  
	
  Section 5.10. Proper
  Records; Rights to Inspect and Appraise

  	
  77

  
	
  Section 5.11. Compliance
  with Laws

  	
  78

  
	
  Section 5.12. Use
  of Proceeds and Letters of Credit

  	
  78

  
	
  Section 5.13. Additional
  Subsidiaries

  	
  78

  
	
  Section 5.14. Further
  Assurances

  	
  78

  
	
  Section 5.15.
  Preparation of Environmental Reports

  	
  79

  
	
  Section 5.16.
  Maintenance of Ratings

  	
  79

  
	
  Section 5.17.
  Operation of Mines

  	
  79

  
	
  Section 5.18.
  Maintenance of Material Contracts

  	
  79

  
	
  Section 5.19.
  Title Opinions

  	
  80

  
	
   

  	
   

  
	
  ARTICLE 6

  
	
  NEGATIVE
  COVENANTS

  
	
   

  	
   

  
	
  Section 6.01. Debt;
  Certain Equity Securities

  	
  80

  
	
  Section 6.02. Liens

  	
  82

  
	
  Section 6.03. Fundamental
  Changes

  	
  83

  
	
  Section 6.04. Investments

  	
  83

  
	
  Section 6.05. Asset
  Sales

  	
  85

  
	
  Section 6.06. Hedging
  Agreements

  	
  86

  
	
  Section 6.07. Restricted
  Payments

  	
  86

  
	
  Section 6.08. Transactions
  with Affiliates

  	
  87

  
	
  Section 6.09. Restrictive
  Agreements

  	
  88

  



 

















 


	
  Section 6.10. Amendment
  of Material Documents

  	
  89

  
	
  Section 6.11. Net
  Cash  Interest Expense Coverage
  Ratio

  	
  89

  
	
  Section 6.12. Leverage
  Ratio

  	
  89

  
	
  Section 6.13.
  First Lien Senior Secured Leverage Ratio

  	
  89

  
	
   

  
	
  ARTICLE 7

  
	
  EVENTS OF
  DEFAULT

  
	
   

  
	
  ARTICLE 8

  
	
  THE
  ADMINISTRATIVE AGENT

  
	
   

  	
   

  
	
  Section 8.01. Appointment
  and Authorization

  	
  92

  
	
  Section 8.02.
  Rights and Powers as a Lender

  	
  92

  
	
  Section 8.03. Limited
  Duties and Responsibilities

  	
  93

  
	
  Section 8.04. Authority
  to Rely on Certain Writings, Statements and Advice

  	
  93

  
	
  Section 8.05. Sub-Agents
  and Related Parties

  	
  93

  
	
  Section 8.06. Resignation;
  Successor Administrative Agent

  	
  94

  
	
  Section 8.07. Credit
  Decisions by Lenders

  	
  94

  
	
   

  	
   

  
	
  ARTICLE 9

  
	
  MISCELLANEOUS

  
	
   

  	
   

  
	
  Section 9.01. Notices

  	
  95

  
	
  Section 9.02. Waivers;
  Amendments

  	
  96

  
	
  Section 9.03. Expenses;
  Indemnity; Damage Waiver

  	
  97

  
	
  Section 9.04. Successors
  and Assigns

  	
  99

  
	
  Section 9.05. Survival

  	
  102

  
	
  Section 9.06. Counterparts;
  Integration; Effectiveness

  	
  102

  
	
  Section 9.07. Severability

  	
  103

  
	
  Section 9.08. Right
  of Set-off

  	
  103

  
	
  Section 9.09. Governing
  Law; Jurisdiction; Consent to Service of Process

  	
  103

  
	
  Section 9.10. WAIVER
  OF JURY TRIAL

  	
  104

  
	
  Section 9.11. Headings

  	
  104

  
	
  Section 9.12. Confidentiality

  	
  104

  
	
  Section 9.13.
  PATRIOT Act

  	
  105

  



 


	
  SCHEDULES:

  	
   

  
	
   

  	
   

  
	
  Schedule 1.01(a)

  	
  List of Restricted Subsidiaries

  
	
  Schedule 1.01(b)

  	
  List of Excluded Subsidiaries

  
	
  Schedule 2.01

  	
  Commitments

  
	
  Schedule 3.05(c)

  	
  Material Property Claims

  
	
  Schedule 3.05(e)

  	
  Material Properties

  
	
  Schedule 3.06

  	
  Disclosed Matters

  
	
  Schedule 3.12

  	
  List of Subsidiaries

  
	
  Schedule 3.13

  	
  Insurance

  
	
  Schedule 5.19

  	
  Federal and State Mining Leases

  



 

















 


	
  Schedule 6.01

  	
  Existing Debt

  
	
  Schedule 6.02

  	
  Existing Liens

  
	
  Schedule 6.04

  	
  Existing Investments

  
	
  Schedule 6.09

  	
  Existing Restrictions

  
	
   

  	
   

  
	
  EXHIBITS:

  	
   

  
	
   

  	
   

  
	
  Exhibit A

  	
  Form of Assignment

  
	
  Exhibit B-1

  	
  Form of Opinion of Borrower’s Counsel

  
	
  Exhibit B-2

  	
  Form of Opinion of Borrower’s Regulatory
  Counsel

  
	
  Exhibit B-3

  	
  Form of Opinion of Borrower’s In-House Counsel

  
	
  Exhibit B-4

  	
  Form of Opinion of Parent’s In-House Counsel

  
	
  Exhibit B-5

  	
  Form of Opinion of Administrative Agent’s
  Regulatory Counsel

  
	
  Exhibit C

  	
  Form of Guarantee and Security Agreement

  
	
  Exhibit D

  	
  Form of Notice of LC Request

  
	
  Exhibit E-1

  	
  Form of Borrowing Request

  
	
  Exhibit E-2

  	
  Form of Swingline Borrowing Request

  
	
  Exhibit F

  	
  Form of Note

  
	
  Exhibit G

  	
  Form of Interest Election Request

  
	
  Exhibit H

  	
  Certificate Regarding Non-Bank Status

  



 

















 


CREDIT AGREEMENT dated as of November 25, 2009
among CLOUD PEAK ENERGY RESOURCES LLC, as Borrower, the LENDERS party hereto,
the ISSUING BANKS party hereto, MORGAN STANLEY SENIOR FUNDING, INC., as
Administrative Agent and Swingline Lender, MORGAN STANLEY SENIOR FUNDING, INC.,
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH and RBC CAPITAL MARKETS, as Joint Lead
Arrangers and Joint Bookrunners, CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH and
RBC CAPITAL MARKETS as Joint Syndication Agents, CALYON NEW YORK BRANCH and
JPMORGAN CHASE BANK, N.A. and THE BANK OF NOVA SCOTIA, SOCIETE GENERALE, and
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Joint Documentation Agents.


 


RECITALS:


 


Through a series of transactions, (i) Rio Tinto
Energy America Inc., a Delaware corporation (“Parent”),
contributed the Powder River Basin coal mining business (the “Coal Business”) of Rio Tinto America Inc.,
a Delaware corporation (“RTA”) to
the Borrower and (ii) concurrently with the execution of this Agreement,
Parent will (x) transfer a portion of its Equity Interests in the Borrower
to Cloud Peak Energy Inc., a Delaware corporation (“Holdings”), and (y) consummate a public offering, for
Parent’s own account, of common stock of Holdings.


 


The Borrower wishes to borrow funds and obtain letters
of credit under this Agreement for the purposes set forth herein, and is
willing to:


 


(i)  cause certain
of its Subsidiaries to guarantee obligations of the Borrower hereunder and
under certain Permitted Hedging Agreements; and to secure its guarantee thereof
by granting Liens on its assets to the Administrative Agent as provided in the
Security Documents;


 


(ii)  secure its
obligations hereunder and under such Permitted Hedging Agreements, and cause
such guarantor Subsidiaries to secure their obligations under such guarantees,
in each case through pledges and other security interests on substantially all
of their assets, all as further provided in the Security Documents; and


 


The Lenders and the Issuing Banks are not willing to
make loans or issue or participate in letters of credit hereunder, and the
counterparties to the Permitted Hedging Agreements referred to above are not
willing to enter into or maintain them, unless the foregoing obligations of the
Borrower are secured and guaranteed as described above and each guarantee
thereof is secured by Liens on assets of the relevant Guarantor as provided in
the Security Documents;


 


Therefore, the parties hereto agree as follows:


 

















 


ARTICLE
1

DEFINITIONS


 


Section 1.01.  Defined Terms.  As used in this Agreement, the
following terms have the meanings specified below:


 


“ABR”,
when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate
determined by reference to the Alternate Base Rate.


 


“Acquired Debt”
means, with respect to any specified Person, (a) Debt of any other Person
existing at the time such other Person is merged with or into or became a
Subsidiary of such specified Person, whether or not such Debt is incurred in
connection with, or in contemplation of, such other Person merging with or
into, or becoming a Restricted Subsidiary of, such specified Person, and (b) Debt
secured by a Lien encumbering an asset acquired by such specified Person.


 


“Acquisition”
means, with respect to any Person (the “acquiror”),
any direct or indirect acquisition by such acquiror of all or substantially all
of the Equity Interests in another Person, all or substantially all of the coal
or other mineral reserves of such other Person or any other assets or business
of any other Person constituting a business unit, line of business or division
of such other Person.


 


“Acquisition
Agreement” means the Acquisition Agreement between Holdings and
Parent to be entered into on or prior to the Effective Date.


 


“Acquisition
Documents” means the Acquisition Agreement, the LLC Agreement, the
Software License Agreement, the Cloud Peak Promissory Note, the Master
Separation Agreement, the Employee Matters Agreement, the Escrow Agreement, the
Management Services Agreement, the Transition Services Agreement, the
Registration Rights Agreement, the Trademark License Agreement, the Tax
Receivable Agreement, the Trademark Assignment Agreement, the RTEA Coal Supply
Agreement and the Agency Agreement (as such terms are defined in the Master
Separation Agreement).


 


“Adjustable Asset”
means the RTEA Units and any asset other than cash owned by the Borrower,
either directly or indirectly through one or more entities that are treated as
partnerships or that are disregarded for U.S. federal income tax purposes.


 


“Adjusted LIBO Rate”
means, with respect to any Eurodollar Borrowing for any Interest Period, an
interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for
such Interest Period multiplied by (b) the Statutory Reserve Adjustment.


 


“Administrative
Agent” means Morgan Stanley Senior Funding, Inc., in its
capacity as administrative agent under the Loan Documents.


 


2

















 


“Administrative
Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent.


 


“Affiliate”
means, with respect to a specified Person, another Person that directly, or
indirectly through one or more intermediaries Controls or is Controlled by or
is under common Control with, such specified Person.  “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 (provided that the Parent and its
Affiliates (other than the Borrower and its Subsidiaries) shall not be deemed
to Control the Borrower solely as a result of the rights and obligations under
the Acquisition Documents), and a Person shall be presumed to “Control” another
Person if (A) the first Person either (i) is the beneficial owner,
directly or indirectly, of 35% or more of the total voting power of the Voting
Stock of such specified Person or (ii) (x) is the beneficial owner,
directly or indirectly, of 10% or more of the total voting power of the Voting
Stock of such specified Person and (y) has the right to appoint or
nominate, or has an officer or director that is  at least one member of the Board of Directors of such
specified Person, or (B) if the specified Person is a limited liability
company, the first Person is the managing member.  “Controlled”
has a meaning correlative thereto.


 


“Agent Parties”
means, collectively, the Administrative Agent, the Joint Lead Arrangers and the
Joint Syndication Agents.


 


“Alternate Base Rate”
means, for any day, a rate per annum equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in
effect on such day plus 1⁄2 of 1% and (c) the Adjusted LIBO Rate for a one
month Interest Period determined on such day (or if such day is not a Business
Day, the immediately preceding Business Day) plus
1%.  Any change in the Alternate Base
Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the
Adjusted LIBO Rate shall be effective from and including the effective date of
such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted
LIBO Rate, as applicable.


 


“Applicable
Percentage” means, with respect to any Lender, the percentage of the
total Commitments represented by such Lender’s Commitment.  If the Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the
Commitments most recently in effect, giving effect to any assignments.


 


“Applicable Rate”
means, for any day, with respect to any ABR Loan or Eurodollar Revolving Loan,
or with respect to the Unused Commitment Fees payable hereunder, as the case
may be, the applicable rate per annum set forth below under the caption “ABR
Spread”, “Eurodollar Spread” or “Unused Commitment Fee Rate”, as the case may
be, based upon the Applicable Ratings (as defined below) ratings by Moody’s and
S&P, respectively, applicable on such date to the Level in effect on such
date:


 


	
  Ratings
  Level

  	
   

  	
  ABR 

  Spread

  	
   

  	
  Eurodollar

  Spread

  	
   

  	
  Unused
  Commitment

  Fee Rate

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Level 1

  	
   

  	
  2.25

  	
  %

  	
  3.25

  	
  %

  	
  0.75

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Level 2

  	
   

  	
  2.75

  	
  %

  	
  3.75

  	
  %

  	
  0.75

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Level 3

  	
   

  	
  3.00

  	
  %

  	
  4.00

  	
  %

  	
  0.75

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Level 4

  	
   

  	
  3.25

  	
  %

  	
  4.25

  	
  %

  	
  0.75

  	
  %

  



 


3

















 


For purposes of the foregoing:


 


“Level 1” applies on any day if on such day
the Applicable Rating is BB+ or higher by S&P and Ba1 or higher by Moody’s.


 


“Level 2” applies on any day if on such day (i) Level
1 does not apply and (ii) the Applicable Rating is BB or higher by S&P
and Ba2 or higher by Moody’s.


 


“Level 3” applies on any day if on such day (i) neither
Level 1 nor Level 2 applies and (ii) the Applicable Rating is BB- or
higher by S&P and Ba3 or
higher by Moody’s.


 


“Level 4” applies on any day if on such day
none of Levels 1, 2 and 3 applies.


 


“Applicable Rating” means the corporate or
corporate family rating for the Borrower in effect at such time by Moody’s or
S&P, as applicable (or, if the designation “corporate” or “corporate family”
have been modified, such successor designations corresponding to such rating), provided that (i) if at any time
either Moody’s or S&P shall not have in effect a corporate or corporate
family rating, as applicable, for the Borrower (other than by reason of the
circumstances referred to in the last sentence of this definition), then such
rating agency shall be deemed to have established a rating in Level 4, and (ii) if
the corporate or corporate family ratings established or deemed to have been
established by Moody’s and S&P shall be changed (other than as a result of
a change in the rating system of Moody’s or S&P), such change shall be
effective as of the date on which it is first announced by the applicable
rating agency, irrespective of when notice of such change shall have been
furnished by the Borrower to the Agent and the Lenders pursuant to Section 5.01
or otherwise.


 


“Assignment”
means an assignment and assumption agreement entered into by a Lender and an
assignee (with the consent of any party whose consent is required by Section 9.04),
and accepted by the Administrative Agent, in the form of Exhibit A or any
other form approved by the Administrative Agent.


 


“Attributable
Indebtedness” means, at any date, in respect of Capital Leases of
any Person, the capitalized amount thereof that would appear on a balance sheet
of such Person prepared in accordance with GAAP.


 


4
















 


“Availability Period”
means the period from and including the Effective Date to but excluding the
earlier of the Maturity Date and the date of termination of all the
Commitments.


 


“Available Equity Basket
Amount” means, at any date, an amount equal to (i) 100% of the
aggregate net cash proceeds received by the Borrower from issuances by the
Borrower of Equity Interests or from issuances by Holdings of Equity Interests
(other than Disqualified Equity Interests), the net cash proceeds of which are
contributed to the Borrower as additional common Equity Interests (other than
Disqualified Equity Interests), in each case, since the Effective Date less (ii) the aggregate amount of such Available Equity
Basket Amount otherwise applied under the Agreement, provided
that solely to the extent that such payments are included in the calculation of
EBITDA for a period by operation of clause (xiv) of the definition thereof,
payments by Parent or its Affiliates (other than the Borrower and its
Subsidiaries) on behalf of the Borrower or its Subsidiaries in connection with
the Acquisition Documents that are contributions or deemed to be contributions,
directly or indirectly, to the equity capital of the Borrower shall not be
considered an issuance of Equity Interests for purposes of determining the
Available Equity Basket Amount.


 


“Available Net Income
Basket Amount” means, at any date, an amount equal to (i) 25%
of cumulative Consolidated Net Income from the period beginning with the first
full fiscal quarter of the Borrower beginning after the Effective Date and
ending with the fiscal quarter ending on or most recently prior to such date
(or, if such cumulative amount is negative, $0) less
(ii) the aggregate amount of such Available Net Income Basket Amount
otherwise applied under the Agreement.


 


“Basis Adjustment”
means the adjustment to the tax basis of an Adjustable Asset under any
provision of the Code, including Section 732 of the Code (in situations
where, as a result of one or more Exchanges, Borrower becomes an entity that is
disregarded as separate from its owner for tax purposes), Section 1012 of
the Code, or Sections 743(b) and 754 of the Code (in situations where,
following an Exchange, Borrower remains in existence as an entity for tax
purposes) as a result, in each case, of an Exchange and the payments made
pursuant to the Tax Receivable Agreement. The amount of any Basis Adjustment
resulting from an Exchange of one or more RTEA Units shall be determined
without regard to any Pre-Exchange Transfer of such RTEA Units and as if any
such Pre-Exchange Transfer had not occurred.


 


“BLM” means the
Bureau of Land Management.


 


“Borrower”
means Cloud Peak Energy Resources LLC, a Delaware limited liability company.


 


“Borrowing”
means (a) Revolving Loans of the same Type made, converted or continued on
the same day and, in the case of Eurodollar Loans, as to which the same
Interest Period is in effect or (b) a Swingline Loan.


 


5

















 


“Borrowing Request”
means a request by the Borrower, substantially in the form of Exhibit E-1
or E-2 hereto, as applicable, for a Borrowing in accordance with Section 2.03.


 


“Business Day”
means any day that is not a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to remain closed; provided that, when used in connection
with a Eurodollar Loan, the term “Business Day” shall also exclude any day on
which banks are not open for dealings in dollar deposits in the London
interbank market.


 


“Capital Lease”
means, with respect to any Person, any lease of any property which, in
conformity with GAAP, is required to be capitalized on the balance sheet of
such Person.


 


“Capital Lease
Obligations” of any Person means obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the
right to use) real or personal property, or a combination thereof, which
obligations are required under GAAP to be classified and accounted for as
capital leases on a balance sheet of such Person.  The amount of such obligations will be the
capitalized amount thereof determined in accordance with GAAP.


 


“Capital Stock”
means, with respect to any Person, any and all shares of stock of a
corporation, partnership interests or other equivalent interests (however
designated, whether voting or non-voting) in such Person’s equity, entitling
the holder to receive a share of the profits and losses, and a distribution of
assets, after liabilities, of such Person.


 


“Cash
Equivalents” means:


 


(a)           U.S. Government Obligations or
certificates representing an ownership interest in U.S. Government Obligations
with maturities not exceeding one year from the date of acquisition,


 


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


 


6

















 


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)           investment funds at least 95% of the
assets of which consist of investments of the type described in clauses (a) through
(d) above;


 


(f)            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


 


(g)           in
the case of a Foreign Subsidiary, substantially similar investments, of
comparable credit quality, denominated in the currency of any jurisdiction in
which such person conducts business.


 


“Change in Control” means:


 


(a)           any
“person” or “group” (as such terms are used for purposes of Sections 13(d) and
14(d) of the Exchange Act), other than Permitted Holders, is or becomes
the “beneficial owner” (as such term is used in Rules 13d-3 under the
Exchange Act), directly or indirectly, of more than 49% of the total voting
power of the Voting Stock of Holdings or the Borrower;


 


(b)           the
Permitted Holders (other than Holdings) are or become the “beneficial owners”
(as such term is used in Rules 13d-3 under the Exchange Act), directly or
indirectly, of more than 65% of the total voting power of the Voting Stock of
Holdings or the Borrower;


 


(c)           individuals
who on the Effective Date constituted the board of directors of Holdings (or,
from and after the time, if any, at which the Borrower shall have a board of
directors, individuals who, on such date, constituted the board of directors of
the Borrower), together with any new directors whose election by the board of
directors or whose/ nomination for election by the equity holders of Holdings
or the Borrower, as applicable, was approved by a majority of the directors
then still in office who were either directors or whose election or nomination
for election was previously so approved, cease for any reason to constitute a
majority of the board of directors of Holdings or the Borrower, as applicable,
then in office;


 


(d)           Holdings
ceases to be the managing member of the Borrower; or


 


(e)           the
adoption of a plan relating to the liquidation or dissolution of Holdings or
the Borrower.


 


“Change in Law”
means (a) the adoption of any law, rule or regulation after the date
of this Agreement, (b) any change in any law, rule or regulation or
in the interpretation or application thereof by any Governmental Authority
after such date or (c) compliance by any Lender or Issuing Bank (or, for
purposes of Section 2.14(b), by any


 


7

















 


lending office of such Lender or by such
Lender or Issuing Bank’s holding company, if any) with any request, guideline
or directive (whether or not having the force of law) of any Governmental
Authority made or issued after such date.


 


“Class”, when
used in reference to any Loan or Borrowing, refers to whether such Loan, or the
Loans comprising such Borrowing, are Revolving Loans or Swingline Loans.


 


“Cloud Peak Companies” means the
Borrower, Holdings and the Restricted Subsidiaries.


 


“Coal Business”
has the meaning specified in the introductory paragraph hereto.


 


“Code” means the
Internal Revenue Code of 1986, as amended from time to time.


 


“Collateral”
means any and all “Collateral”, as defined in any Security Document.


 


“Collateral and Guarantee Requirement” means the requirement
that:


 


(a)           the
Administrative Agent shall have received from each Credit Party either (i) a
counterpart of the Security Agreement duly executed and delivered on behalf of
such Credit Party or (ii) in the case of any Person that becomes a Credit
Party after the Effective Date, a supplement to the Security Agreement, in the
form specified therein, duly executed and delivered on behalf of such Credit
Party;


 


(b)           all
outstanding Equity Interests owned by any Credit Party and that are required to
be pledged pursuant to the Security Agreement (except that the Credit Parties
shall not be required to pledge more than 66% of the outstanding voting Equity
Interests in any Foreign Subsidiary) shall have been pledged pursuant to the
Security Agreement and the Administrative Agent shall have received all
certificates or other instruments representing such Equity Interests of
Subsidiaries of such Credit Party, together with stock powers or other
instruments of transfer with respect thereto endorsed in blank;


 


(c)           all
documents and instruments, including Uniform Commercial Code financing
statements and Mortgages, required by law or reasonably requested by the
Administrative Agent to be filed, registered or recorded to create the Liens
intended to be created by the Security Documents and perfect or record such
Liens to the extent, and with the priority, required by the Security Agreement,
shall have been filed, registered or recorded or delivered to the
Administrative Agent for filing, registration or recording;


 


(d)           the
Administrative Agent shall have received (i) counterparts of a Mortgage
with respect to each Mortgaged Property duly executed, notarized and delivered
by the record owner of such Mortgaged Property; it being


 


8

















 


understood that with respect
to the legal descriptions attached to the Mortgages encumbering the Mortgaged
Properties described by this clause (i), in the event the Administrative Agent
determines that any Mortgage does not include all of the real property
(including fixtures and improvements) which is owned or leased by Borrower or a
Restricted Subsidiary at that particular site, then upon written notice of the
Administrative Agent, Borrower or any Restricted Subsidiary shall execute and
deliver (at the sole cost and expense of Borrower) all necessary documentation,
including without limitation an amendment to the applicable Mortgage, to cause
the unencumbered portion of said real property to be included in such Mortgage
and (ii) such legal opinions and other documents as the Administrative
Agent or the Required Lenders may reasonably request with respect to any such
Mortgage or Mortgaged Property (including, without limitation, a completed
Federal Emergency Management Agency Standard Flood Hazard Determination with
respect to each portion of the Mortgaged Property constituting improved
residential or commercial real estate or a mobile home); provided,
that no Credit Party shall be required to take such actions under this clause (d) with
respect to any property acquired or leased after the date hereof that it would
not have been required to take with respect to properties owned or leased on
the Effective Date;


 


(e)           each
Credit Party shall have obtained all consents and approvals required to be
obtained by it in connection with the execution and delivery of all Security
Documents to which it is a party, the performance of its obligations thereunder
and the granting of the Liens granted by it thereunder; provided,
that no Person that becomes a Credit Party after the Effective Date shall be
required to obtain any consents or approvals in connection with the execution
and delivery of Security Documents after the Effective Date that it would not
have been required to obtain under the Security Documents if it had been a
Credit Party on the Effective Date; and


 


(f)            each
Credit Party shall have taken all other action required under the Security
Documents to perfect, register and/or record the Liens granted by it
thereunder, including, without limitation, any required filings with the BLM or
state land management agencies; provided, that
no Credit Party shall be required to take any actions to perfect, register
and/or record Liens granted after the Effective Date other than those required
by the Security Documents for Liens granted as of the Effective Date.


 


“Commitment”
means, with respect to each Lender, the commitment of such Lender to make
Revolving Loans and to acquire participations in Letters of Credit and
Swingline Loans hereunder, expressed as an amount representing the maximum aggregate
amount of such Lender’s Revolving Credit Exposure hereunder, as such commitment
may be (a) increased from time to time pursuant to Section 2.19, (b) reduced
from time to time pursuant to Section 2.08 or (c) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04 (it being understood that the total Commitments
of all the Lenders shall not be reduced or increased in the aggregate pursuant
to Section 9.04).  The initial
amount of each Lender’s Commitment is (x) set forth on Schedule 2.01,
(y) in the case of any New Lender that


 


9

















 


becomes a Lender pursuant to Section 2.19,
in the documents implementing any such increase or addition or (z) in the
Assignment and Assumption pursuant to which such Lender shall have assumed its
Commitment, as applicable.  The initial
aggregate amount of the Lenders’ Commitments is $400,000,000.


 


“Consolidated Current
Liabilities” means, as of any date of determination, the aggregate
amount of liabilities of the Borrower and its consolidated Restricted
Subsidiaries which may properly be classified as current liabilities (including
taxes accrued as estimated, but excluding Specified Coal Agreement
Obligations), after eliminating (a) all intercompany items between the
Borrower and any Restricted Subsidiary or between Restricted Subsidiaries; and (b) all
current maturities of long-term Debt.


 


“Consolidated Interest
Expense” means, for any period, the consolidated interest expense of
the Borrower and its Restricted Subsidiaries, plus,
to the extent not included in such consolidated interest expense, and to the
extent incurred, accrued or payable by the Borrower or its Restricted
Subsidiaries, without duplication, (i) interest expense in respect of
Attributable Debt of Capital Leases, (ii) imputed interest expense in
respect of Specified Coal Agreement Obligations, (iii) amortization of
debt discount and debt issuance costs, (iv) capitalized interest, (v) non-cash
interest expense, and (vi) any interest, premiums, fees or discounts paid
or incurred on the sale of accounts receivable (and any amortization thereof)
payable by the Borrower or any Restricted Subsidiary in connection with a
Permitted Receivables Financing, and any yields or other charges or other
amounts comparable to, or in the nature of, interest payable by the Borrower or
any Restricted Subsidiary under any Permitted Receivables Financing, as
determined on a consolidated basis and in accordance with GAAP.  Consolidated Interest Expense shall be
determined for any period after giving effect to any net payments made or
received and costs incurred by the Borrower and its Restricted Subsidiaries
with respect to any related interest rate Hedging Agreements.


 


“Consolidated Net Cash
Interest Expense” means for any period Consolidated Interest
Expense, less (i) to the extent included in
determining Consolidated Interest Expense for such period, (w) any
non-cash interest or other non-cash charges otherwise included in Consolidated
Interest Expense for such period, (x) imputed interest expense in respect
of Capital Leases, (y) imputed interest expense in respect of Specified
Coal Agreement Obligations and (z) any one-time financing fees paid in connection
with the Transaction or upon any amendment to the Agreement and (ii) the
consolidated cash interest income of the Borrower and the Restricted
Subsidiaries for such period received on cash or Cash Equivalents, other than
any such cash interest income received in respect of cash or Cash Equivalents
pledged or otherwise subject to a Lien in favor of any obligations of the
Borrower or any of its Affiliates. 
Notwithstanding the foregoing, Consolidated Interest Expense for the
Borrower and its Restricted Subsidiaries for the fiscal quarters ended on December 31,
2008, March 31, 2009, June 30, 2009 and September 30, 2009 shall
be deemed to be $14,506,000, $14,340,700, $14,516,000 and $14,691,300,
respectively.


 


“Consolidated Net Income”
means, for any period (i) the aggregate net income (or loss) of the
Borrower and its Restricted Subsidiaries for such period determined on a


 


10

















 


consolidated basis in conformity with GAAP, minus (but without duplication) (ii) for any period in
which the Borrower is a pass-through entity for purposes of U.S. federal taxes,
any Permitted Tax Distributions made with respect to such period, provided that the following (without duplication) will be
excluded in computing Consolidated Net Income:


 


(a)           the
net income (or loss) of any Person that is a non wholly-owned Restricted
Subsidiary (including any joint venture that is a Restricted Subsidiary),
except to the extent of the Borrower’s share, determined pro rata with its
percentage interest (direct or indirect) of common stock of such Person, of
such Person’s net income earned during such period;


 


(b)           the
net income (or loss) of any Person other than a Restricted Subsidiary
(including any joint venture that is not a Restricted Subsidiary) except to the
extent of distributions of cash actually received by the Borrower or a
Guarantor with respect to such period;


 


(c)           the
net income (or loss) of any Person (other than any Credit Party) to the extent
that the declaration or payment of dividends or similar distributions by such
Person of its net income is not at the date of determination permitted without
any prior governmental approval (which has not been obtained) or, directly or
indirectly, by the operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule, or governmental regulation
applicable to that Person or its stockholders, unless such restriction with
respect to the payment of dividends or in similar distributions has been
legally waived;


 


(d)           any
net after-tax (provided that, for any period in
which the Borrower is a pass-through entity for purposes of U.S. federal taxes,
net of the amount included in a Permitted Tax Distribution made with respect
thereto) gains or losses (less all fees and expenses or charges relating
thereto) attributable to asset sales or other Dispositions, in each case other
than in the ordinary course of business;


 


(e)           any
net after-tax (provided that, for any period in
which the Borrower is a pass-through entity for purposes of U.S. federal taxes,
net of the amount included in a Permitted Tax Distribution made with respect
thereto) extraordinary gains or losses; and


 


(f)            the
cumulative effect of a change in accounting principles.


 


“Consolidated Net Tangible
Assets”  means, as of any date of determination, (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 Borrower and its Restricted Subsidiaries 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 Borrower and its Restricted
Subsidiaries minus (c) Consolidated
Current Liabilities, all determined as of such date and after giving pro forma
effect to any transactions occurring on such date.


 


11

















 


“Control”
means 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.


 


“Credit Event”
has the meaning set forth in Section 4.02.


 


“Credit Parties”
means the Borrower and the Guarantors.


 


“Debt” means,
with respect to any Person, without duplication,


 


(a)           all
indebtedness of such Person for borrowed money;


 


(b)           all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments (other than any obligations in respect of performance
bonds, bid bonds, appeal bonds, surety bonds, reclamation bonds and completion
guarantees and similar obligations in respect of Specified Coal Agreements or
under any Mining Law or Environmental Law or with respect to workers’
compensation benefits);


 


(c)           all
obligations of such Person in respect of letters of credit, bankers’
acceptances or other similar instruments (solely to the extent such letters of
credit, bankers’ acceptances or other similar instruments have been drawn);


 


(d)           all
obligations of such Person to pay the deferred and unpaid purchase price of
property or services provided by third-party service providers which are
recorded as liabilities under GAAP, excluding (i) trade payables arising
in the ordinary course of business, (ii) inter-company payables, (iii) working
capital-based and other customary post-closing adjustments in acquisition
transactions and (iv) salary and other employee compensation obligations
incurred in the ordinary course;


 


(e)           the
Attributable Indebtedness of such Person in respect of Capital Leases;


 


(f)            the
amount of all Permitted Receivables Financings of such Person;


 


(g)           Disqualified
Equity Interests issued by the Borrower; and


 


(h)           all
Debt of other Persons Guaranteed by such Person to the extent so Guaranteed;


 


(i)            all
Debt of other Persons secured by a Lien on any asset of such Person, whether or
not such Debt is assumed by such Person;


 


(j)            all
obligations of such Person under Hedging Agreements;


 


12

















 


provided, that in no
event shall Debt include (i) Specified Coal Agreement Obligations, (ii) obligations
(other than obligations with respect to Debt for borrowed money or other Funded
Debt) 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 Borrower
(including the Parent, as its predecessor) and its Subsidiaries, (iii) obligations
under the TRA or (iv) obligations under the Acquisition Documents (other
than the TRA) that are not in respect of Debt of the type referred to in
clauses (a), (b) or (e).


 


The amount of Debt of any Person will be deemed to
be:


 


(i)            with respect to Debt secured by a
Lien on an asset of such Person but not otherwise the obligation, contingent or
otherwise, of such Person, the lesser of (x) the fair market value of such
asset on the date the Lien attached and (y) the principal amount of such
Debt;


 


(ii)           with respect to any Debt issued with
original issue discount, the face amount of such Debt less the remaining
unamortized portion of the original issue discount of such Debt;


 


(iii)          with respect to any Hedging Agreement,
the amount payable (determined after giving effect to all contractually
permitted netting) if such Hedging Agreement terminated at that time due to
default by such Person; and


 


(iv)          otherwise, the outstanding principal
amount thereof.


 


“Decker”
means Decker Coal Company, an unincorporated joint venture under the laws of
Montana, of which the Borrower indirectly owns 50% of the Equity Interests.


 


“Default”
means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an
Event of Default.


 


“Defaulting Lender”
means any Lender that (a) fails to make any Loan at a time when the
conditions precedent set forth in Article 4 to make a Loan hereunder are
satisfied unless such failure has been cured, or fails to fund participations
in Letters of Credit within three Business Days of the date required to be
funded unless such failure has been cured, (b) is or becomes (or whose
parent company is or becomes) the subject of a bankruptcy or insolvency
proceeding, (c) notifies the Borrower, the Administrative Agent, any
Issuing Bank or any Lender in writing that it does not intend to comply with
any of its funding obligations under this Agreement or has made a public
statement to the effect that it does not intend to comply with its funding
obligations under this Agreement or under other agreements generally in which
it commits to extend credit or (d) fails, within three Business Days after
request by the Administrative Agent, to confirm that it will comply with the
terms of this Agreement relating to its obligations to fund prospective Loans
and participations in then outstanding Letters of Credit, provided that


 


13

















 


such Lender shall cease to be a Defaulting
Lender under this clause (c) upon receipt of such information; provided,
further, that a Lender shall not be a Defaulting Lender solely by virtue of the
ownership or acquisition of any ownership interest in such Lender or parent
company thereof or the exercise of control over a Lender or parent company
thereof by a Governmental Authority or instrumentality thereof.


 


“Disclosed Matters”
means the actions, suits, proceedings and environmental matters disclosed in Schedule
3.06.


 


“Disposition” or “Dispose” means the sale, transfer,
license, lease or other disposition of any property by any Person (including
any sale and leaseback transaction and any sale of Equity Interests, but
excluding any issuance by such Person of its own Equity Interests), including
any sale, assignment, transfer or other disposal, with or without recourse, of
any notes or accounts receivable or any rights and claims associated therewith.


 


“Disqualified Equity
Interests” means any Equity Interest that, by its terms (or by the
terms of any security into which it is convertible, or for which it is
exchangeable, in each case, at the option of the holder of such Equity
Interest), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable
at the option of the holder of the Equity Interest, in whole or in part, on or
prior to the date that is 91 days after the Maturity Date.


 


“dollars”
or “$” refers to lawful money of
the United States.


 


“EBITDA” means,
for any period, the sum of


 


(a)           Consolidated
Net Income, plus


 


(b)           in
each case to the extent deducted in calculating Consolidated Net Income for
such period and as determined on a consolidated basis (including without
limitation, any of the following items that have been paid under or in respect
of the Acquisition Documents):


 


(i)            Consolidated Interest Expense for
such period;


 


(ii)           the provision for Taxes based on
income, profits or capital, including, without limitation, state franchise and
similar Taxes (provided that, but without
duplication, and for any period in which the Borrower is a pass-through entity
for purposes of U.S. federal taxes, the amount of any Permitted Tax
Distributions with respect to such period);


 


(iii)          depreciation, depletion, amortization
(including, without limitation, amortization of intangibles, deferred financing
fees and any amortization included in pension, OPEB 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


 


14
















 


and the impact of purchase accounting) but excluding, in each case,
non-cash charges in a period which reflect cash expenses paid or to be paid in
another period, less all non-cash items increasing Consolidated Net Income;


 


(iv)          all non-recurring or unusual gains
(and less all non-recurring or unusual losses);


 


(v)           all non-cash start-up and transition
costs, business optimization expenses and other non-cash restructuring charges;


 


(vi)          the non-cash portion of “straight-line”
rent expense;


 


(vii)         non-cash compensation expense or other
non-cash expenses or charges arising from the granting of stock options, the
granting of stock appreciation rights and similar arrangements (including any
repricing, amendment, modification, substitution or change of any such stock
option, stock appreciation rights or similar arrangements);


 


(viii)        any debt extinguishment costs;


 


(ix)           accretion of asset retirement
obligations in accordance with SFAS No. 143, Accounting for Asset
Retirement Obligations, and any similar accounting in prior periods;


 


(x)            net after-tax losses attributable to
asset sales, and net after-tax extraordinary losses (provided
that, for any period in which the Borrower is a pass-through entity for
purposes of U.S. federal taxes, net of the amount included in a Permitted Tax
Distribution made with respect thereto);


 


(xi)           any transaction costs, fees and
expenses incurred on or about the Effective Date in respect of the
Transactions;


 


(xii)          (A) mark-to-market gains (and
less any mark-to-market losses) relating to any Permitted Hedging Agreements
and (B) any mark-to-market losses attributed to short positions in any
actual or synthetic forward sales contracts relating to coal or any other
similar device or instrument or other instrument classified as a “derivative”
pursuant to SFAS 133;


 


(xiii)         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;


 


(xiv)        any expense that is required to be paid
or has been paid that is recognized on the income statement of the Borrower and
its Subsidiaries as an expense, to the extent that such expense has been


 


15

















 


reimbursed (including through any contribution or deemed contribution
to the equity capital of the Borrower) by the Parent and its Affiliates (other
than the Borrower and its Subsidiaries) to or on behalf of the Borrower and its
Subsidiaries pursuant to the Acquisition Documents (but in any event without
duplication of any such reimbursement payment that is added in arriving at
Consolidated Net Income for such period); and


 


(xv)         any indemnification payments made to
the Parent and its Affiliates (other than the Borrower and its Subsidiaries)
pursuant to the Acquisition Documents in respect of non-recurring items, provided, however, that the aggregate amount of all such
payments to be added back pursuant to this clause (xv) shall not exceed $10
million in the aggregate;


 


minus


 


(c)           the
sum of (in each case without duplication and to the extent the respective
amounts described in subclauses (i) and (ii) of this clause (c) increased
such Consolidated Net Income for the respective period for which EBITDA is
being determined):


 


(i)            non-cash items increasing
Consolidated Net Income of Borrower and the Restricted Subsidiaries for such
period (but excluding any such items (A) in respect of which cash was
received in a prior period or will be received in a future period or (B) which
represent the reversal of any accrual of, or cash reserve for, anticipated cash
charges in any prior period), and


 


(ii)           the cash portion of “straight-line”
rent expense which exceeds the amount expensed in respect of such rent expense.


 


Notwithstanding the foregoing, EBITDA for the
Borrower and its Restricted Subsidiaries for the fiscal quarters ended on December 31,
2008, March 31, 2009, June 30, 2009 and September 30, 2009 shall
be deemed to be $76,476,000, $97,447,000, $103,080,000  and $109,519,000, respectively.


 


“Effective Date”
means the date on which each of the conditions specified in Section 4.01
is satisfied (or waived in accordance with Section 9.02).


 


“Environment”
means soil, land surface or subsurface strata, water, surface waters (including
navigable waters, ocean waters within applicable territorial limits, streams,
ponds, drainage basins, and wetlands), ground waters, drinking water supply,
water related sediments, air, plant and animal life, and any other
environmental medium.


 


“Environmental
Laws” means all laws (including common law), rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the Environment, the preservation, restoration or
reclamation of natural


 


16

















 


resources, or the presence, use, storage,
discharge, management, release or threatened release of any pollutants,
contaminants or hazardous or toxic substances, wastes or material or the effect
of the environment on human health and safety.


 


“Environmental
Liability” means any liability, contingent or otherwise (including
any liability for damages, costs of remediation, fines, penalties or
indemnities), directly or indirectly resulting from or based on (a) violation
of any Environmental Law or Environmental Permit, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous
Material, (c) exposure to any Hazardous Material, (d) the release or
threatened release of any Hazardous Material into the Environment, (e) the
preservation, restoration or reclamation of natural resources or (f) 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,
certifications, exemptions and any other authorization required under any
applicable Environmental Law.


 


“Equity Interests”
means (i) shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or
other equity ownership interests in a Person or (ii) any warrants, options
or other rights to acquire such shares or interests.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time
to time.


 


“ERISA Affiliate”
means any trade or business (whether or not incorporated) that, together with
the Borrower or any Subsidiary, is treated as a single employer under Section 414(b) or
(c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412
of the Code, is treated as a single employer under Section 414 of the
Code.


 


“ERISA Event”
means (a) any “reportable event”, as defined in Section 4043 of ERISA
or the regulations issued thereunder with respect to a Plan (except an event
for which the 30-day notice period is waived); (b) the failure to satisfy
the minimum funding standard with respect to a Plan within the meaning of Section 412
of the Code or Section 303 or 304 of ERISA), whether or not waived; (c) a
determination that any Plan is in “at risk” status (as defined in Section 303(i)(4) of
ERISA or Section 430(i)(4) of the Code; (d) the filing pursuant
to Section 431 or Section 304 of ERISA of an application for the
extension of any amortization period; (e) the failure to timely make a
contribution required to be made with respect to any Plan or Multiemployer Plan
that would result in the imposition of an encumbrance under Section 412 of
the Code or Section 302 of ERISA; (f) the filing of a notice to
terminate any Plan if such termination would require material additional
contributions in order to be considered a standard termination within the
meaning of Section 4041(b) of ERISA; (g) the filing under Section 4041(c) of
ERISA of a notice of intent to terminate any Plan or the termination of any
Plan under Section 4041(c) of ERISA; (h) the filing pursuant to Section 412(d) of
the Code or Section 303(d) of ERISA of an application for a waiver of
the minimum funding standard with respect to any Plan; (i) the incurrence
by the Borrower or any ERISA Affiliate of any liability under


 


17

















 


Title IV of ERISA with respect to the
termination of any Plan; (j) the receipt by the Borrower or any ERISA
Affiliate from the PBGC or a plan administrator of any written notice relating
to the commencement of proceedings to terminate any Plan or Plans or to appoint
a trustee to administer any Plan; (k) the incurrence by the Borrower or
any ERISA Affiliate of any liability with respect to withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; (l) the receipt by the
Borrower or any ERISA Affiliate of any written notice, or the receipt by any
Multiemployer Plan from the Borrower or any ERISA Affiliate of any written
notice, concerning the imposition of Withdrawal Liability or a determination
that a Multiemployer Plan is, or is expected to be, in “endangered” or “critical”
status within the meaning of Section 305 of ERISA; or (m) any Foreign
Benefit Event.


 


“Eurodollar”,
when used with respect to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate
determined by reference to the Adjusted LIBO Rate.


 


“Events of Default”
has the meaning specified in Article 7.


 


“Exchange” means
a redemption of RTEA Units pursuant to an exercise by Parent of its right to
have its units in Borrower redeemed, or any acquisition of RTEA Units by
Holdings, whether acquired in connection with the IPO or otherwise.


 


“Excluded Subsidiary”
means (i) those entities listed on Schedule 1.01(b) (an “Initial Excluded Subsidiary”) and (ii) any other
Subsidiary of the Borrower that, after the Effective Date, the Borrower
notifies the Administrative Agent in writing is an “Excluded Subsidiary”, but
only to the extent that such Subsidiary (a) has no Debt other than
Non-Recourse Debt (other than any Debt of an Initial Excluded Subsidiary
outstanding on the Effective Date), (b) is not a party to any agreement or
contract with the Borrower or any Restricted Subsidiary of the Borrower except
as permitted by Section 6.08, (c) is a Person with respect to which
neither the Borrower nor any of its Restricted Subsidiaries has any direct or
indirect obligation to subscribe for additional Equity Interests in such
Person, (d) has not guaranteed any Debt of the Borrower or any of its
Restricted Subsidiaries and (e) does not own any Equity
Interests of the Borrower or any Restricted Subsidiary.


 


“Excluded Taxes”
means, with respect to the Administrative Agent, any Lender, Issuing Bank or
any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) any Taxes imposed, deducted or
withheld by reason of any present or former connection between the recipient
and the jurisdiction imposing the Tax (other than on account of the execution,
delivery, performance, filing, recording, or enforcement of, this Agreement and
the other Loan Documents, and recipient’s participation in the transactions
contemplated by this Agreement and the other Loan Documents), (b) any
branch profits Taxes imposed by the United States of America or any similar Tax
imposed by any other jurisdiction in which the Borrower is located and (c) in
the case of an Issuing Bank, a Lender (other than an assignee pursuant to a
request by the Borrower under Section 2.18(b)) or an Agent Party, any
withholding tax (and any penalties and/or interest arising therefrom
or with respect thereto) that is (i) imposed, deducted or
withheld with respect to amounts payable to such Lender, Issuing


 


18

















 


Bank or Agent Party at the time such Lender,
Issuing Bank or Agent Party becomes a party to this Agreement (or designates a
new lending office) or (ii) attributable to such Lender’s, Issuing Bank’s
or Agent Party’s failure to comply with Section 2.16(e) (disregarding the
last sentence of Section 2.16(e) for such purpose unless such Lender,
Issuing Bank or Agent Party is not legally able to deliver any form or
certificate pursuant to Section 2.16(e) due to a Change in Law after
the date such Lender, Issuing Bank or Agent Party becomes a party hereto),
except with respect to clause (i) above to the extent that such Issuing
Bank or Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from the Borrower with respect to such withholding tax (and any
penalties and/or interest arising therefrom or with respect thereto) pursuant to Section 2.16(a).


 


“Federal Funds
Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published on the next succeeding Business Day by
the Federal Reserve Bank of New York, or, if such rate is not so published on
such Business Day, the average (rounded upwards, if necessary, to the next
1/100 of 1%) of the quotations for such day for 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 Federal Reserve System of
the United States.


 


“Financial Officer”
means the chief financial officer, principal accounting officer, treasurer or
controller of the Borrower.


 


“First Lien Senior Secured
Debt” means all Funded Debt that is secured by a Lien (including,
without limitation, Debt under this Agreement, secured purchase money
obligations and Permitted Receivables Financing) other than Second Lien Senior
Secured Debt.


 


“First Lien Senior Secured
Leverage Ratio” means, on any day, the ratio of (a) First Lien
Senior Secured Debt as of such day to (b) EBITDA for the period of four
consecutive Fiscal Quarters ended on such day (or, if such day is not the last
day of a Fiscal Quarter, ended on the last day of the Fiscal Quarter most
recently ended before such day).


 


“Fiscal Quarter”
means a fiscal quarter of the Borrower.


 


“Fiscal Year”
means a fiscal year of the Borrower.


 


“Foreign Benefit Event”
shall mean, with respect to any Foreign Pension 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, on or before the due date for such
contributions or payments, (c) the receipt of a notice by a Governmental
Authority relating to the intention to


 


19

















 


terminate any such Foreign Pension Plan or to
appoint a trustee or similar official to administer any such Foreign Pension
Plan, or alleging the insolvency of any such Foreign Pension Plan, (d) the
incurrence of any liability by the Borrower or any Subsidiary under applicable
law on account of the complete or partial termination of such Foreign Pension
Plan or the complete or partial withdrawal of any participating employer
therein or (e) the occurrence of any transaction that is prohibited under
any applicable law and that could reasonably be expected to result in the
incurrence of any liability by the Borrower or any Subsidiary, or the
imposition on the Borrower or any Subsidiary of any fine, excise tax or penalty
resulting from any noncompliance with any applicable law.


 


“Foreign Pension Plan”
shall mean any benefit plan subject to the laws of a jurisdiction outside the
United States that under such applicable law is required to be funded through a
trust or other funding vehicle other than a trust or funding vehicle maintained
exclusively by a Governmental Authority and with respect to which the Borrower
or any of its Restricted Subsidiaries has any liability.


 


“Foreign Subsidiary” means a Subsidiary
(which may be a corporation, limited liability company, partnership or other
legal entity) organized under the laws of a jurisdiction outside the United
States, other than any such entity that is treated as a partnership,
disregarded entity or other “look-through” entity (for purposes of federal
taxation under the Code) of the Borrower or one of its Subsidiaries organized
under the laws of the United States or a state or other subdivision thereof so
long as treating such Subsidiary as other than a Foreign Subsidiary would not
cause at any time an inclusion by Parent, Holdings or any Affiliate thereof
under Section 951(a)(1)(B) of the Code.


 


“Funded Debt”
means, at any time, and determined on a consolidated basis without duplication,
the consolidated Debt of the Borrower and its Restricted Subsidiaries of the
type referred to in clauses (a), (b), (c) (but only with respect to
reimbursement obligations related thereto), (e), (f), (g), (h) and (i) in
the definition of Debt (but in the case of clauses (h) and (i), only to
the extent that the Debt of other Persons so Guaranteed or secured is itself of
the type referred to in clauses (a), (b), (c) (but only with respect to
reimbursement obligations related thereto), (e) or (f) of such
definition.


 


“GAAP”
means generally accepted accounting principles as in effect in the United
States on the Effective Date, applied on a basis consistent (except for changes
concurred in by the Borrower’s independent public accountants) with the most
recent audited consolidated financial statements of the Borrower and its
consolidated Subsidiaries delivered to the Lenders.


 


“Governmental
Authority” means the government of the United States, 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.


 


“Guarantee”
by any Person (the “guarantor”)
means any obligation, contingent or otherwise, of the guarantor guaranteeing
any Debt or other obligation of any other


 


20

















 


Person (the “primary obligor”), whether directly or indirectly, and
including any written obligation of the guarantor, (a) to purchase or pay
(or advance or supply funds for the purchase or payment of) such Debt or other
obligation or to purchase (or advance or supply funds for the purchase of) any
security for the payment thereof, (b) to maintain working capital, equity
capital or any other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Debt or other
obligation or (c) as an account party in respect of any letter of credit
or letter of guaranty issued to support such Debt or other obligation; provided that the term “Guarantee” shall
not include endorsements for collection or deposit in the ordinary course of
business.


 


“Guarantors”
means each Wholly-Owned Restricted Subsidiary of the Borrower other than any
Foreign Subsidiary.


 


“Hazardous
Material” means all explosive or radioactive substances or wastes
and all hazardous or toxic substances, wastes or other pollutants, including
petroleum or petroleum distillates, asbestos or asbestos-containing materials,
polychlorinated biphenyls, radon gas, infectious or medical wastes, and all
other substances or wastes of any nature, in each case subject to regulation
under or which could give rise to liability under any Environmental Law,
including, without limitation, coal ash, coal combustion by-products or waste,
boiler slag, scrubber residue or flue desulphurization residue.


 


“Hedging Agreement”
means any interest rate protection agreement, foreign currency exchange
agreement, commodity price protection agreement or other interest rate,
currency exchange rate or commodity price hedging arrangement or any actual or
synthetic forward sale contracts or any other similar device or instrument.


 


“Holdings”
has the meaning specified in the introductory paragraph hereto.


 


“Improvements”
has the meaning assigned to such term in the Mortgages.


 


“Indemnified Taxes”
means all Taxes except Excluded Taxes.


 


“Information
Memorandum” means the Confidential Information Memorandum dated September 30,
2009 relating to the Borrower and the Transactions.


 


“Interest Election Request”
means a request by the Borrower, substantially in the form of Exhibit G
hereto or such other form reasonably acceptable to the Administrative Agent, to
convert or continue a Revolving Borrowing in accordance with Section 2.07.


 


“Interest Payment Date”
means (a) with respect to any ABR Loan (other than a Swingline Loan), (x) the
last day of each March, June, September and December and (y) any
day on which an ABR Loan is converted to a Eurodollar Loan, (b) with
respect to any Eurodollar Loan, the last day of the Interest Period applicable
to the Borrowing of which such Loan is a part and, in the case of a Eurodollar
Borrowing with an Interest Period of more than three months’ duration, each day
prior to the last day of such Interest Period that occurs at intervals of three
months’ duration after the first day of such Interest


 


21

















 


Period, and (c) with respect to any
Swingline Loan, the day that such Loan is required to be repaid.


 


“Interest Period”
means, with respect to any Eurodollar Borrowing, the period commencing on the
date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months (or, with the consent of
each Lender, nine months) thereafter, as the Borrower may elect; provided that (i) if any Interest
Period would end on a day other than a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless, in the case of a
Eurodollar Borrowing only, such next succeeding Business Day would fall in the
next calendar month, in which case such Interest Period shall end on the next
preceding Business Day and (ii) any Interest Period pertaining to a
Eurodollar Borrowing that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last Business Day
of the last calendar month of such Interest Period.  For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and, in the case of
a Revolving Borrowing, thereafter shall be the effective date of the most
recent conversion or continuation of such Borrowing.


 


“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 debt or other securities of another Person, (b) a
loan, advance or capital contribution to, Guarantee or assumption of debt of,
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 all or substantially all of the
property and assets or business of another Person or assets constituting a
business unit, line of business or division of such Person.  For purposes
of covenant compliance, the amount of any Investment shall be the amount
actually invested, without adjustment for subsequent increases or decreases in
the value of such Investment, less any amount paid, repaid, returned,
distributed or otherwise received in cash in respect of such Investment.


 


“Investment Grade Date” means the
first date (after the Effective Date) on which the Borrower has,
simultaneously, (i) a corporate credit rating equal to or higher than Baa3
(or the equivalent) by Moody’s and (ii) a corporate family rating equal to
or higher than BBB- (or the equivalent) by S&P; provided
that the Borrower has not been placed on “negative watch” by Moody’s or S&P
at such time.


 


“IPO”
means an initial public offering of capital stock of Holdings on the date
hereof.


 


“IPO Registration Statement”
means the registration statement on Form S-1, including the prospectus
related thereto, filed by Holdings with the Securities and Exchange Commission
in connection with the IPO, together with all amendments and supplements
thereto as of the Effective Date.


 


22

















 


“ISP”
means the International Standby Practices 1998, International Chamber of
Commerce Publication No. 590.


 


“Issuing Bank”
means Morgan Stanley Bank, N.A., Credit Suisse AG, Cayman Islands branch, Royal
Bank of Canada, JPMorgan Chase Bank, N.A., Wells Fargo Bank, National
Association, and any other Lender that, at the request of the Borrower and with
the consent of the Administrative Agent (not to be unreasonably withheld or
delayed), agrees to become an Issuing Bank in substitution for an institution
that is then acting as an Issuing Bank or as an additional Issuing Bank; provided that there shall not be more than four (4) Issuing
Banks at any one time.  Each Issuing Bank
may, in its discretion, arrange for one or more Letters of Credit to be issued
by Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall
include any such Affiliate with respect to Letters of Credit issued by such
Affiliate.


 


“Joint Lead Arrangers”
means Morgan Stanley Senior Funding, Inc., Credit Suisse AG, Cayman Islands
branch and RBC Capital Markets, in each case in its capacity as joint lead
arrangers under the Agreement.


 


“Joint Syndication Agents”
means Credit Suisse AG, Cayman Islands branch and RBC Capital Markets, in each
case in its capacity as joint syndication agents under the Agreement.


 


“LBA” means the
acquisition of federal coal through an application for a federal coal lease
submitted in accordance with the BLM competitive leasing regulations.


 


“LBM” means the
acquisition of federal coal through an application to modify an existing coal
lease submitted in accordance with the BLM non-competitive leasing regulations.


 


“LC Disbursement”
means a payment made by an Issuing Bank pursuant to a Letter of Credit.


 


“LC Exposure”
means, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus (b) the aggregate amount
of all LC Disbursements that have not yet been reimbursed by or on behalf of
the Borrower at such time.  The LC
Exposure of any Lender at any time shall be its Applicable Percentage of the
total LC Exposure at such time.


 


“Lender Affiliate”
means, (a) with respect to any Lender, (i) an Affiliate of such
Lender or (ii) any entity (whether a corporation, partnership, trust or
otherwise) that is engaged in making, purchasing, holding or otherwise
investing in bank loans and similar extensions of credit in the ordinary course
of its business and is administered or managed by such Lender or an Affiliate
of such Lender and (b) with respect to any Lender that is a fund which
invests in bank loans and similar extensions of credit, any other fund that
invests in bank loans and similar extensions of credit and is managed by the
same investment advisor as such Lender or by an Affiliate of such investment
advisor.


 


23

















 


“Lender Parties”
means the Lenders, the Issuing Banks and the Administrative Agent.


 


“Lenders”
means the Persons listed on Schedule 2.01 and any other Person that shall have
become a party hereto pursuant to an Assignment, other than any such Person
that ceases to be a party hereto pursuant to an Assignment.  Unless the context requires otherwise, the
term “Lenders” includes the Swingline Lender.


 


“Letter of Credit”
has the meaning specified in Section 2.05(a).


 


“Leverage Ratio”
means, on any day, the ratio of (a) Funded Debt as of such day to (b) EBITDA
for the period of four consecutive Fiscal Quarters ended on such day (or, if
such day is not the last day of a Fiscal Quarter, ended on the last day of the
Fiscal Quarter most recently ended before such day).


 


“LIBO Rate”
means, with respect to any Eurodollar Borrowing for any Interest Period, the
greater at any time of (a) (x) the rate per annum appearing on Page BBAM
1 on the Bloomberg Service (or on any successor or substitute page of such
service, or any successor to or substitute for such service, providing rate
quotations comparable to those currently provided on such page of such
service, as determined by the Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to dollar
deposits in the London interbank market) at approximately 11:00 a.m.,
London time, two Eurodollar Business Days prior to the commencement of such
Interest Period, as the rate for dollar deposits with a maturity comparable to
such Interest Period or (y) if the rate referred to in clause (x) is
not available at such time for any reason, then the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period
are offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days before the beginning of such
Interest Period and (b) 2.50% per annum.


 


“Lien” means any
mortgage, pledge, security interest, encumbrance, lien or charge of any kind
(including any conditional sale or other title retention agreement or Capital
Lease).


 


“Loan Documents”
means this Agreement, any Notes and the Security Documents.


 


“Loan Financing
Transactions” means the execution, delivery and performance by each
Credit Party of the Loan Documents to which it is to be a party, the borrowing
of Loans, the use of the proceeds thereof and the issuance of Letters of Credit
hereunder.


 


“Loans”
means loans made by the Lenders to the Borrower pursuant to this
Agreement.  Unless the context requires
otherwise, the term “Loans” includes Swingline Loans.


 


“Long-Term Debt”
means any Debt that, in accordance with GAAP, constitutes (or, when incurred,
constituted) a long-term liability.


 


24
















 


“Master Separation
Agreement” means the Master Separation Agreement by and among RTA,
Parent, Kennecott Management Services Company, Holdings, the Borrower and the
subsidiaries listed on the signature pages thereto to be entered into on
or prior to the Effective Date.


 


“Material Adverse
Effect” means any event or circumstance, either individually or in
the aggregate, that has had or would reasonably be expected to have a material (a) adverse
effect on (i) the business, assets, operations or condition (financial or
otherwise) of the Borrower and its Restricted Subsidiaries taken as a whole
(which, for the avoidance of doubt shall not include any impact on the Borrower
and/or its Restricted Subsidiaries resulting from the expiration of its
existing contract with Houston Light & Power, the sale of the Jacobs
Ranch Mine or the winding-up of operations at the Decker Mine), or (ii) the
ability of the Credit Parties (taken as a whole) to perform any of their
payment obligations under any Loan Document or (b) impairment of the
rights of or benefits available to any Lender Party under any Loan Document.


 


“Material Debt”
means Debt (other than obligations in respect of the Loans and Letters of
Credit), or obligations in respect of one or more Hedging Agreements, of the
Borrower and its Restricted Subsidiaries in an aggregate principal amount
exceeding $50,000,000 (except for purposes of clause (g)(ii) of Article 7,
in which case the aggregate principal amount shall be $25,000,000).  For purposes of determining Material Debt,
the “principal amount” of the obligations of the Borrower or any of its
Restricted Subsidiaries in respect of any Hedging Agreement at any time will be
the maximum aggregate amount (after giving effect to any netting agreements)
that the Borrower or such Restricted Subsidiary would be required to pay if
such Hedging Agreement were terminated at such time; provided,
however, that Material Debt shall not
include any guarantees or Letters of Credit in respect of any performance,
surety, reclamation or similar bonds securing obligations of the Borrower or
any of its Subsidiaries.


 


“Maturity Date”
means December 16, 2013.


 


“Membership Interest
Purchase Agreement” means the Membership Interest Purchase
Agreement, dated as of March 8, 2009, by and between Rio Tinto Sage LLC
and Arch Coal, Inc.


 


“Mine” means any
excavation or opening into the earth now and hereafter made from which coal is
or can be extracted from any of the Real Properties.


 


“Mining Laws”
means any and all applicable federal, state, local and foreign statutes, laws,
regulations, legally-binding guidance, ordinances, rules, judgments, orders,
decrees or common law causes of action relating to mining operations and
activities under the Mineral Leasing Act of 1920, the Federal Coal Leasing
Amendments Act or the Surface Mining Control and Reclamation Act, each as
amended or its replacement, and their state and local counterparts or
equivalents.


 


“Mining Lease”
means a lease, license or other use agreement which provides the Borrower or
any Subsidiary the real property and water rights, other interests in land,
including coal, mining and surface rights, easements, rights of way and
options, and


 


25

















 


rights to timber and natural gas (including
coalbed methane and gob gas) necessary or desirable in order to recover coal
from any Mine.  Leases which provide
Borrower or any other Subsidiary the right to construct and operate a conveyor,
crusher plant, silo, load out facility, rail spur, shops, offices and related
facilities on the surface of the Real Property containing such reserves shall
also be deemed a Mining Lease.


 


“Mining Permits”
means any and all material permits, licenses, registrations, certifications,
exemptions and any other authorization required under any applicable Mining Law
or otherwise necessary to recover coal from any Mine being operated by the
Borrower or any other Subsidiary.


 


“Moody’s”
means Moody’s Investors Service, Inc.


 


“Mortgage” means a mortgage, deed of trust,
assignment of leases and rents, leasehold mortgage or other security document
granting a Lien on any Mortgaged Property, Fixture or As-Extracted Collateral
(as such terms are defined in the UCC) to secure the Secured Obligations.  Each Mortgage must be reasonably satisfactory
in form and substance to the Administrative Agent.


 


“Mortgaged
Property” means any Real Property that is either (i) identified
as a Mortgaged Property on Schedule 3.05(e) or (ii) subject to a
Transaction Lien granted after the Effective Date pursuant to Section 5.13
or 5.14.


 


“Multiemployer
Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.


 


“Non-Recourse Debt”
means Debt (i) as to which neither the Borrower nor any of its Restricted
Subsidiaries provides a Guarantee or other support in the form of keep-well and
(ii) as to which the holders of such Debt do not otherwise have recourse
to the stock or assets of the Borrower or any of its Restricted Subsidiaries
(other than the Equity Interests of an Excluded Subsidiary).


 


“Note” means a
promissory note made by the Borrower in favor of a Lender evidencing Loans made
by such Lender, substantially in the form of Exhibit F hereto, as may be
amended, supplemented or modified from time to time.


 


“Notice of LC
Request” has the meaning specified in Section 2.05(b).


 


“Other Taxes”
means any and all present or future recording, stamp, documentary, excise,
transfer, sales, property or similar taxes, charges or levies arising from any
payment made under any Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, any Loan Document.


 


“Parent” has the
meaning specified in the introductory paragraph hereto.


 


“Participant Register”
has the meaning specified in Section 9.04(h).


 


“Participants”
has the meaning specified in Section 9.04(e).


 


26

















 


“PATRIOT Act”
means the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56).


 


“PBGC”
means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.


 


“Perfection
Certificate” means a certificate in the form of Exhibit E to
the Security Agreement or any other form approved by the Administrative Agent.


 


“Permit Area”
means, with respect to any Mine, all land covered by the Mining Permits with
respect to such Mine.


 


“Permitted Business”
means the mining, production, marketing and sale of coal and any business that
is ancillary or complementary to the foregoing.


 


“Permitted Hedging
Agreements” means Hedging Agreements entered into in the ordinary
course of business of the Borrower and its Restricted Subsidiaries to hedge
interest rate, foreign currency or commodity risk or otherwise for
non-speculative purposes (regardless of whether such agreement or instrument is
classified as a “derivative” pursuant to SFAS 133 and required to be
marked-to-market).


 


“Permitted Holders”
means any or all of the following: (a) Rio Tinto plc, (b) Parent, (c) Holdings
and (d) any direct or indirect holding company both the Capital Stock and
the Voting Stock of which (or in the case of a trust, the beneficial interests
in which) are owned directly or indirectly, at least 80% by Rio Tinto plc
and/or Parent.


 


“Permitted Liens” means:


 


(a)           Liens imposed by law for taxes that are not yet due
or are being contested in compliance with Section 5.05;


 


(b)           carriers’, warehousemen’s, mechanics’, materialmen’s,
repairmen’s and other like Liens imposed by law, arising in the ordinary course
of business and securing obligations that are not overdue by more than 30 days
or are being contested in compliance with Section 5.05;


 


(c)           pledges or deposits made in the ordinary course of
business (i) in compliance with workers’ compensation, unemployment
insurance and other social security laws or regulations or to secure
liabilities to insurance carriers under insurance arrangements in respect of
such obligations, (ii) to secure payment of reclamation liabilities or (iii) in
support of obligations under existing coal sales contracts (and extensions or
renewals thereof on similar terms);


 


(d)           existing or future grants of coal bed methane leases
or oil and gas or other hydrocarbon leases granted by any Governmental
Authority or other third party and associated pipelines, collection facilities,
accessways and easements pertaining to the same;


 


27

















 


(e)           surface use agreements, easements, zoning
restrictions, rights of way, encroachments, pipelines, leases (other than
Capital Lease Obligations), licenses, special assessments, trackage rights,
transmission and transportation lines related to Mining Leases or mineral right
and/or other Real Property including any reconveyance obligations to a surface
owner following mining, royalty payments, and other obligations under surface
owner purchase or leasehold arrangements necessary to obtain surface
disturbance rights to access the subsurface coal deposits and similar encumbrances
on Real Property imposed by law or arising in the ordinary course of business
that do not secure any monetary obligation and do not materially detract from
the value of the affected property or interfere with the ordinary conduct of
business of the Borrower or any Subsidiary;


 


(f)            pledges, deposits or non-exclusive licenses to use
intellectual property rights of the Borrower or its Subsidiaries to secure the
performance of bids, tenders, trade contracts, leases, public or statutory
obligations, surety and appeal bonds, reclamation bonds, performance bonds and
other obligations of a like nature, in each case in the ordinary course of
business;


 


(g)           judgment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Article 7;


 


(h)           Production Payments, royalties, dedication of
reserves under supply agreements, Liens in favor of the owner in connection
with any Mining Leases, or similar rights or interests granted, taken subject
to, or otherwise imposed on properties consistent with normal practices in the
mining industry and any precautionary UCC financing statement filing in respect
of leases (and not any Debt) entered into the ordinary course of business;


 


(i)            rights of owners of interests in overlying,
underlying or intervening strata and/or mineral interests not owned by Borrower
or one of its Subsidiaries, with respect to Real Property where the Borrower or
applicable Subsidiary’s ownership is only surface or severed mineral or is
otherwise subject to mineral severances in favor of one or more third parties;


 


(j)            layback arrangements, joint operation arrangements
and similar arrangements with adjoining coal operators;


 


(k)           Liens for Specified Coal Agreements arising as a
result of Specified Coal Agreement Obligations or obligations to grant surface
or water rights;


 


(l)            Liens on joint venture interests in favor of joint
venture partners to secure obligations arising under the respective joint
venture agreements;


 


(m)          with respect to water rights, Liens imposed by the
doctrine of prior appropriation (including seniority of water rights), the
necessity to put the water to a beneficial use, restrictions imposed by the
applicable Governmental


 


28

















 


Authority and the actual
availability of water (including restrictions on the use of ground water);


 


(n)           farm, grazing, hunting, recreational and residential
leases with respect to which the Borrower or any Subsidiary is a lessor
encumbering portions of the Real Properties to the extent such leases would be
granted or permitted by a prudent operator of mining properties similar in use
and configuration to Real Properties.


 


(o)           encumbrances typically 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 prudent operator of mining property similar in use and
configuration to such Real Property (e.g., surface rights agreements, wheelage
agreements and reconveyance agreements);


 


(p)           rights and easements of owners (i) of undivided
interests in any of the Real Property where the Borrower or its Subsidiaries
own less than 100% of the fee interest, (ii) of interests in the surface
of any Real Property where the Borrower or its Subsidiaries do not own or lease
such surface interest, (iii) and lessees, if any, of coal or other
minerals (including oil, gas and coalbed methane) where the Borrower or its
Subsidiaries do not own such coal or other minerals, and (iv) and lessees
of other coal seams and other minerals (including oil, gas and coalbed methane)
not owned or leased by the Borrower or its Subsidiaries;


 


(q)           with respect to any Real Property in which Borrower
or any 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);


 


(r)            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;


 


(s)           Liens securing obligations in respect of
trade-related letters of credit permitted under Section 6.01(xii) covering
only the goods (or the documents of title in respect of such goods) financed by
such letters of credit and the proceeds and products thereof; and


 


(t)            Liens on the escrow account and Investments in such
escrow account, in each case to the extent permitted under Section 6.04(m).


 


provided, that the term “Permitted Liens”
shall not include any Lien that secures Debt for borrowed money or other Funded
Debt and such Liens, in the aggregate, do not have


 


29

















 


a Material Adverse Effect on the operation of
the business in the ordinary course of the Credit Parties as currently
conducted.


 


“Permitted Receivables
Financing” means any receivables financing facility or arrangement
pursuant to which a Securitization Subsidiary purchases or otherwise acquires
Receivables of the Borrower or any Restricted Subsidiary and enters into a
third party financing thereof on terms that the managing member of the Borrower
has concluded are customary and market terms fair to the Borrower and its
Restricted Subsidiaries.


 


“Permitted Tax
Distributions” means distributions by the Borrower to
Holdings and other equity holders of the Borrower in an aggregate amount with
respect to any period not in excess of (i) the cumulative amount of Taxes
that the Borrower and its Subsidiaries would have been required to pay in respect
of all periods from the Effective Date through the end of such period (including required
payments with respect to estimated income taxes so as to avoid penalties)
calculated (x) as if the Borrower were taxable as a United States
corporation on a stand-alone basis with no carryforwards from periods prior
ending on or prior to the Effective Date, (y) as if Borrower had a
carryover basis in the assets it received from Parent and its affiliates (i.e.
determined without regard to any Basis Adjustments), and (z) as if the
basis of any other assets of Borrower were determined without regard to any
Basis Adjustments, over (ii) the sum of (w) the amount of any
such Taxes actually paid by the Borrower and its Subsidiaries in respect of
such periods and (v) the amount of all prior Permitted Tax Distributions.


 


“Person”
means any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity.


 


“Plan”
means any employee pension benefit plan (except a Multiemployer Plan) subject
to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302
of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or,
if such plan were terminated, would under Section 4069 of ERISA be deemed
to be) a “contributing sponsor” as defined in Section 4001(a)(13) of
ERISA.


 


“Pre-Exchange Transfer”
means any transfer of one or more RTEA Units that occurs prior to an Exchange
of such RTEA Units.


 


“Primary Syndication”
means the period of time beginning on the Effective Date and ending on the date
which is forty-five (45) days after the Effective Date.


 


“Prime Rate”
means the rate of interest per annum published by the Wall Street Journal, U.S.
edition, from time to time, as the prime rate.


 


“Private Coal Agreement”
means an agreement between the Borrower and/or one or more of its Subsidiaries,
on the one hand, and a seller or lessee (in each case, that is not a
Governmental Authority) (the “Transferee”) under which the Borrower and its
Subsidiaries acquire coal through (i) a lease from such Transferee, (ii) the
purchase of one or more coal deposit or other assets from such Transferee or (iii) the
exchange of coal


 


30

















 


assets between the Borrower and its
Subsidiaries, on the one hand, and such Transferee, on the other.


 


“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.


 


“Productive Assets”
means long-term or capital assets (or all of the capital stock or other Equity
Interests of a Person holding principally long-term or capital assets and that
becomes a Restricted Subsidiary) that are used or usable by the Borrower or its
Restricted Subsidiaries in a Permitted Business.


 


“Pro Forma Basis”,
“Pro Forma Compliance” and “Pro Forma Effect” means, for purposes of
calculating compliance with each of the financial covenants set forth in Section 6.11,
Section 6.12 and Section 6.13 in respect of a Specified Transaction,
that the following transactions in connection therewith shall be deemed to have
occurred as of the first day of the applicable period of measurement in such
covenant:  (a) income statement
items (whether positive or negative) attributable to the property or Person
subject to such Specified Transaction, (i) in the case of a Disposition of
all or substantially all of the assets or Equity Interests of any Subsidiary or
of any division or product line or coal or other mine or mineral reserves, the
Person or property so Disposed of shall be excluded, and (ii) in the case
of an Acquisition, the Person or property so acquired shall be included, (b) any
retirement of Debt and (c) any incurrence or assumption of Debt by the
Borrower or any Restricted Subsidiary in connection therewith (and if such Debt
has a floating or formula rate, such Debt shall have an implied rate of
interest for the applicable period for purposes of this definition determined
by utilizing the rate which is or would be in effect with respect to such Debt
as at the relevant date of determination).


 


“Real Property”
shall mean, collectively, all right, title and interest of the Borrower or any
other Subsidiary (including any leasehold or mineral estate) in and to any and
all parcels of real property owned or operated by the Borrower or any other
Subsidiary, whether by lease, license or other use agreement, including but not
limited to, coal leases and surface use agreements, together with, in each
case, all Improvements and appurtenant fixtures (including all conveyors,
preparation plants or other coal processing facilities, silos, shops and load
out and other transportation facilities), easements and other property and
rights incidental to the ownership, lease or operation thereof, including but
not limited to, access rights, water rights and extraction rights for minerals.


 


“Receivables”
means accounts receivable (including all rights to payment) created by or
arising from the sale of goods, leases of goods or the rendition of services,
no matter how evidenced (including in the form of a chattel paper).


 


“Register”
has the meaning specified in Section 9.04(c).


 


31

















 


“Related Parties”
means, with respect to any specified Person, such Person’s Affiliates and the
respective directors, officers, employees, agents and advisors of such Person
and its Affiliates.


 


“Required Lenders”
means, at any time, Lenders having Revolving Credit Exposures and unused
Commitments representing more than 50% of the sum of the total Revolving Credit
Exposures and unused Commitments at such time; provided
that the unused Commitment of, and the portion of the total Revolving Credit
Exposures held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders.


 


“Restricted
Payment” means any (i) dividend or other distribution (whether
in cash, securities or other property) with respect to any Equity Interest in
the Borrower or any of its Subsidiaries, or any payment or other distribution
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any Equity Interest in the Borrower
or any of its Subsidiaries or (ii) any prepayment, purchase, repurchase
redemption of, or other payment in respect of, Subordinated Debt other than
payments of interest when due and principal when due in accordance with the
scheduled maturity thereof; provided that
indemnity payments under the Master Separation Agreement shall not be deemed to
be Restricted Payments even if calculated with reference to percentage equity
ownership of the Borrower or Holdings.


 


“Restricted
Subsidiary” of a Person means any Subsidiary of the Borrower other
than an Excluded Subsidiary.  Schedule
1.01(a) sets forth all Restricted Subsidiaries as of the Effective Date.


 


“Revolving Credit
Exposure” means, with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lender’s Revolving Loans and its LC
Exposure and Swingline Exposure at such time.


 


“RTA” has the
meaning specified in the introductory paragraph hereto.


 


“RTEA Units”
means any membership units in the Borrower that were owned by Parent or its
Affiliate prior to the IPO.


 


“S&P”
means Standard & Poor’s Ratings Services, a division of The
McGraw-Hill Companies, Inc.


 


“SEC”
means the Securities and Exchange Commission.


 


“Second Lien Senior Secured
Debt” means Debt of the Credit Parties secured by Liens on the
Collateral on a junior basis pursuant to intercreditor arrangements, which
shall contain customary market terms and conditions for second lien financings
and otherwise be in form and substance reasonably satisfactory to the
Administrative Agent.


 


“Secured Guarantee”
has the meaning specified in Section 1 of the Security Agreement.


 


32

















 


“Secured
Obligations” has the meaning specified in Section 1 of the
Security Agreement.


 


“Secured Parties”
has the meaning specified in Section 1 of the Security Agreement.


 


“Securitization Subsidiary”
means a Subsidiary of the Borrower (a) that is designated a “Securitization
Subsidiary” by the managing member of the Borrower, (b) that does not
engage in, and whose charter prohibits it from engaging in, any activities
other than Permitted Receivables Financings and any activity necessary,
incidental or related thereto, (c) no portion of the Debt or any other
obligation, contingent or otherwise, of which (x) is Guaranteed by the
Borrower or any Restricted Subsidiary of the Borrower, (y) is recourse to
or obligates the Borrower or any Restricted Subsidiary of the Borrower in any
way, or (z) subjects any property or asset of the Borrower or any
Restricted Subsidiary of the Borrower, directly or indirectly, contingently or
otherwise, to the satisfaction thereof, and (d) with respect to which
neither the Borrower nor any Restricted Subsidiary of the Borrower (other than
an Excluded Subsidiary) has any obligation to maintain or preserve its
financial condition or cause it to achieve certain levels of operating results,
other than, in respect of clauses (c) and (d), pursuant to customary
representations, warranties, covenants and indemnities entered into in
connection with a Permitted Receivables Financing.


 


“Security
Agreement” means the Guarantee and Security Agreement among the
Credit Parties and the Administrative Agent, substantially in the form of Exhibit C.


 


“Security
Documents” means the Security Agreement, the Mortgages and each
other security agreement, instrument or document executed and delivered
pursuant to Section 5.13 or 5.14 to secure any of the Secured Obligations.


 


“Senior Notes”
means the senior unsecured notes to be issued by the Borrower on or before the
Effective Date in the aggregate principal amount of $600,000,000 and the Debt
represented thereby.


 


“Senior Notes
Documents” means the indenture under which the Senior Notes are
issued and all other instruments, agreements and other documents evidencing or
governing the Senior Notes or providing for any Guarantee or other right in
respect thereof.


 


“Solvent”
and “Solvency” mean, with respect
to any Person on any date of determination, that on such date (a) the fair
value of the property of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities, of such
Person, (b) the present fair salable value of the assets of such Person is
not less than the amount that will be required to pay the probable liability of
such Person on its debts as they become absolute and matured, (c) such
Person does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person’s ability to pay such debts and liabilities as
they mature and (d) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
such Person’s property would constitute an unreasonably small capital.  The amount of


 


33

















 


contingent liabilities at any time shall be
computed as the amount that, in light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.


 


“Specified Coal Agreement
Obligations” means installment or deferred payment obligations or
royalty payment obligations or obligations in connection with the acquisition
of related surface rights, in each case, in connection with a Specified Coal
Agreement owed solely to the seller or lessor thereunder (and not to a bank or
other third-party financer), but, (i) in the case of any such obligations
under a Private Coal Agreement, only to the extent that the proven and probable
coal reserves and other non-reserve coal deposits acquired under all such
Private Coal Agreements do not in the aggregate exceed 15% of the total proven
and probable coal reserves and other non-reserve coal deposits of the Borrower
and its Restricted Subsidiaries at such time, and (ii) excluding, in any
event, any Funded Debt.


 


“Specified Coal Agreements”
means any LBA, LBM, State Coal Lease and Private Coal Agreements.


 


“Specified Transaction” means any (a) Disposition
of all or substantially all the assets of or all the Equity Interests of any
Restricted Subsidiary or of any division or product line or coal or other mine
or mineral reserves of any Restricted Subsidiary, (b) Acquisition, or (c) the
proposed incurrence of Debt or making of a Restricted Payment in respect of
which compliance with the financial covenants set forth in Section 6.11, Section 6.12
and Section 6.13 is by the terms of this Agreement required to be
calculated on a Pro Forma Basis.


 


“State Coal Lease”
means the acquisition of coal owned by a State in accordance with the coal
leasing regulations of such State.


 


“Statutory Reserve
Adjustment” means a fraction (expressed as a decimal), the numerator
of which is the number one and the denominator of which is the number one minus
the aggregate of the maximum reserve percentages (including any marginal,
special, emergency or supplemental reserves) expressed as a decimal established
by the Federal Reserve Board to which the Administrative Agent is subject with
respect to eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Federal Reserve Board).  Such reserve percentages will include those
imposed pursuant to such Regulation D. 
Eurodollar Loans will be deemed to constitute eurocurrency funding and
to be subject to such reserve requirements without benefit of or credit for
proration, exemptions or offsets that may be available from time to time to any
Lender under such Regulation D or any comparable regulation.  The Statutory Reserve Adjustment will be
adjusted automatically on and as of the effective date of any change in any
applicable reserve percentage.


 


“Subordinated Debt”
means Debt of any Credit Party that, by its terms, is subordinated in right of
payment to the obligations hereunder in respect of the Loans (but not including
Second Lien Senior Secured Debt that is subordinated only in respect of the
security interest on the Collateral).


 


34
















 


“subsidiary”
means, with respect to any Person (the “parent”)
at any date, (a) any corporation, joint venture, limited liability
company, partnership or other entity the accounts of which would be
consolidated with those of the parent in the parent’s consolidated financial
statements if such financial statements were prepared in accordance with GAAP
as of such date and (b) any other corporation, limited liability company,
partnership or other entity of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary
voting power or, in the case of a partnership, more than 50% of the general
partnership interests are, as of such date, owned, controlled or held by the
parent and/or one or more of its subsidiaries.


 


“Subsidiary”
means any subsidiary of the Borrower.


 


“Swingline
Exposure” means, at any time, the aggregate outstanding principal
amount of the Swingline Loans at such time. 
The Swingline Exposure of any Lender at any time will be its Applicable
Percentage of the total Swingline Exposure at such time.


 


“Swingline Lender”
means Morgan Stanley Senior Funding, Inc., in its capacity as the lender
of Swingline Loans hereunder.


 


“Swingline Loan”
means a Loan made pursuant to Section 2.04.


 


“Taxes” means
any present or future tax, levy, import, duty, charge, deduction, withholding,
assessment or fee of any nature (including interest, penalties, and additions
thereto) that is imposed by any Governmental Authority or other
taxing authority.


 


“Tax Receivable Agreement”
or “TRA” means the Tax Receivable Agreement
to be entered into between the Parent and Holdings.


 


“Transaction Documents”
means, collectively, the Acquisition Documents, the IPO Registration Statement,
the Senior Notes Documents and the Loan Financing Documents.


 


“Transaction Liens”
means the Liens on Collateral granted by the Credit Parties under the Security
Documents.


 


“Transactions”
means collectively, the transactions to occur on or prior to the Effective Date
pursuant to the Transaction Documents, including without limitation the Loan
Financing Transactions, the IPO and the issuance of the Senior Notes.


 


“Type”,
when used with respect to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined
by reference to the Adjusted LIBO Rate or the Alternate Base Rate.


 


“UCP”
means The Uniform Customs and Practice for Documentary Credits, 2007 Revision,
ICC Publication No. 600.


 


“Unfunded Pension Liability” means the
excess of a Plan’s benefit liabilities under Section 4001(a)(16) of ERISA,
over the current value of that Plan’s assets,


 


35

















 


determined in accordance with the assumptions
used for funding the Plan pursuant to Section 412 of the Code for the
applicable plan year.


 


“United States”
means the United States of America.


 


“Unused Commitment Fee”
has the meaning set forth in Section 2.11.


 


“U.S. Government
Obligations” means obligations issued or directly and fully guaranteed
or insured by the United States or by any agent or instrumentality thereof, provided that the full faith and credit of the United States
is pledged in support thereof.


 


“Voting Stock”
means with respect to any Person, Capital Stock of any class or kind ordinarily
having the power to vote for the election of directors, managers or other
voting members of the governing body of such Person.


 


“Withdrawal
Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV of ERISA.


 


“Wholly-Owned
Restricted Subsidiary” means at any time a Restricted Subsidiary all
of the outstanding Equity Interests of which (other than directors’ qualifying
shares) are at such time owned by the Borrower and/or one or more Wholly-Owned
Restricted Subsidiaries of the Borrower.


 


Section 1.02.  Classification of Loans and
Borrowings.  For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving Loan”)
or by Type (e.g., a “Eurodollar
Loan”) or by Class and Type (e.g.,
a “Eurodollar Revolving Loan”).  Borrowings also may be classified and
referred to by Class (e.g., a “Revolving Borrowing”) or by Type (e.g.,
a “Eurodollar Borrowing”) or by Class and
Type (e.g., a “Eurodollar
Revolving Borrowing”).


 


Section 1.03.  Terms Generally.  The definitions of terms herein
(including those incorporated by reference to another document) apply equally
to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun
includes the corresponding masculine, feminine and neuter forms.  The words “include”,
“includes” and “including” shall be deemed to be followed
by the phrase “without limitation”.  The word “will”
shall be construed to have the same meaning and effect as the word “shall”. 
Unless the context requires otherwise, (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth
herein), (b) any reference herein to any Person shall be construed to
include such Person’s successors and assigns, (c) the words “herein”, “hereof”
and “hereunder”, and words of
similar import, shall be construed to refer to this Agreement in its entirety
and not to any particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the
word “property” 


 


36

















 


shall be construed to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.


 


Section 1.04.  Accounting Terms.  Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP.


 


ARTICLE 2

THE CREDITS


 


Section 2.01.  Commitments.  Subject to the terms and
conditions set forth herein, each Lender agrees to make Revolving Loans to the
Borrower from time to time during the Availability Period in an aggregate
principal amount that will not result in (a) such Lender’s Revolving
Credit Exposure exceeding such Lender’s Commitment or (b) the sum of the
total Revolving Credit Exposures exceeding the total Commitments.  Within the foregoing limits and subject to
the terms and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Revolving Loans.


 


Section 2.02.  Loans and Borrowings.  (a)  Each Revolving Loan
shall be made as part of a Borrowing consisting of Revolving Loans made by the
Lenders ratably in accordance with their respective Commitments.  The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the
Commitments of the Lenders are several and no Lender shall be responsible for
any other Lender’s failure to make Loans as required.


 


(b)           Subject to Section 2.13, each Revolving
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
Borrower may request in accordance herewith. 
Each Swingline Loan shall be an ABR Loan.  Each Lender at its option may make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender
to make such Loan; provided that
any exercise of such option shall not affect the obligation of the Borrower to
repay such Loan in accordance with the terms of this Agreement.


 


(c)           At the commencement of each Interest Period for any
Eurodollar Revolving Borrowing, such Borrowing shall be in an aggregate amount
that is an integral multiple of $1,000,000 and not less than $5,000,000.  At the time that each ABR Revolving Borrowing
is made, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $5,000,000; provided that an ABR Revolving Borrowing may be in an
aggregate amount that is equal to the entire unused balance of the total
Commitments or that is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.05(e).  Each Swingline Loan shall be in an amount
that is an integral multiple of $500,000 and not less than $500,000.  Borrowings of more than one Type and Class may
be outstanding at the same time; provided
that there shall not at any time be more than a total of ten (10) Eurodollar
Revolving Borrowings outstanding.


 


37

















 


(d)           Notwithstanding any other provision of this
Agreement, the Borrower shall not be entitled to request, or to elect to
convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after the Maturity Date.


 


Section 2.03.  Requests for Revolving
Borrowings.  To request a
Revolving Borrowing, the Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurodollar Borrowing, not later
than 11:00 a.m., New York City time, three Business Days before the date
of the proposed Borrowing or (b) in the case of an ABR Borrowing, not
later than 11:00 a.m., New York City time, one Business Day before the
date of the proposed Borrowing; provided
that any such notice of an ABR Revolving Borrowing to finance the reimbursement
of an LC Disbursement as contemplated by Section 2.05(e) may be given
not later than 10:00 a.m., New York City time, on the date of the proposed
Borrowing.  Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a Borrowing Request in a
form approved by the Administrative Agent and signed by the Borrower.  Each such telephonic and written Borrowing
Request shall specify the following information in compliance with Section 2.02:


 


(i)            the aggregate
amount of the requested Borrowing;


 


(ii)           the date of
such Borrowing, which shall be a Business Day;


 


(iii)          whether such
Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;


 


(iv)          in the case of
a Eurodollar Borrowing, the initial Interest Period to be applicable thereto,
which shall be a period contemplated by the definition of the term “Interest
Period”; and


 


(v)           the location
and number of the Borrower’s account to which funds are to be disbursed, which
shall comply with the requirements of Section 2.06.


 


If no election as to the Type of Revolving Borrowing
is specified, then the requested Revolving Borrowing shall be an ABR
Borrowing.  If no Interest Period is
specified with respect to any requested Eurodollar Revolving Borrowing, then
the Borrower shall be deemed to have selected an Interest Period of one month’s
duration, subject to the definition of Interest Period.  Promptly following receipt of a Borrowing
Request in accordance with this Section, the Administrative Agent shall advise
each Lender of the details thereof and of the amount of such Lender’s Loan to
be made as part of the requested Borrowing.


 


Section 2.04.  Swingline Loans.  (a)  Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline
Loans to the Borrower from time to time during the Availability Period, in an
aggregate principal amount at any time outstanding that will not result in (i) the
aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000
or (ii) the sum of the total Revolving Credit Exposures exceeding the
total Commitments; provided that
the Swingline Lender shall


 


38

















 


not be required to make a Swingline Loan to
refinance an outstanding Swingline Loan. 
Within the foregoing limits and subject to the terms and conditions set
forth herein, the Borrower may borrow, prepay and reborrow Swingline
Loans.  Notwithstanding anything to the
contrary contained in this Section 2.04 or elsewhere in this Agreement,
the Swingline Lender shall not be obligated to make any Swingline Loan at a
time when a Lender is a Defaulting Lender unless the Swingline Lender has
entered into arrangements satisfactory to it and the Borrower to eliminate the
Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting
Lenders’ participation in such Swingline Loans, including by cash collateralizing
such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the
outstanding Swingline Loans.


 


(b)           To request a Swingline Loan, the Borrower shall
notify the Administrative Agent of such request by telephone (confirmed by
telecopy), not later than 12:00 noon, New York City time, on the day of a
proposed Swingline Loan.  Each such
notice shall be irrevocable and shall specify the requested date (which shall
be a Business Day) and amount of the requested Swingline Loan.  The Administrative Agent will promptly advise
the Swingline Lender of any such notice received from the Borrower.  The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the general
deposit account of the Borrower with the Swingline Lender (or, in the case of a
Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.05(e), by remittance to the relevant Issuing Bank)
by 3:00 p.m., New York City time, on the requested date of such Swingline
Loan.


 


(c)           The Swingline Lender may by written notice given to
the Administrative Agent not later than 10:00 a.m., New York City time, on
any Business Day require the Lenders to acquire participations on such Business
Day in all or a portion of the Swingline Loans outstanding.  Such notice shall specify the aggregate
amount of Swingline Loans in which Lenders will participate.  Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each Lender, specifying in
such notice such Lender’s Applicable Percentage of such Swingline Loan or
Loans.  Each Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent, for the account of the Swingline Lender, such Lender’s
Applicable Percentage of such Swingline Loan or Loans.  Each Lender acknowledges and agrees that its
obligation to acquire participations in Swingline Loans pursuant to this
paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or reduction or termination of the Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever, subject to Section 2.16. 
Each Lender shall comply with its obligation under this paragraph by
wire transfer of immediately available funds, in the same manner as provided in
Section 2.06 with respect to Loans made by such Lender (and Section 2.06
shall apply, mutatis mutandis, to the payment obligations of the Lenders), and
the Administrative Agent shall promptly pay to the Swingline Lender the amounts
so received by it from the Lenders.  The
Administrative Agent shall notify the Borrower of any participations in any
Swingline Loan acquired pursuant to this paragraph, and thereafter payments in
respect of such Swingline Loan shall be made to the Administrative Agent and
not to the Swingline Lender.  Any amounts
received by the Swingline Lender from the Borrower (or other party on behalf of
the Borrower) in respect of a Swingline Loan after receipt by the


 


39

















 


Swingline Lender of the proceeds of a sale of
participations therein shall be promptly remitted to the Administrative Agent;
any such amounts received by the Administrative Agent shall be promptly
remitted by the Administrative Agent to the Lenders that shall have made their
payments pursuant to this paragraph and to the Swingline Lender, as their
interests may appear; provided
that any such payment so remitted shall be repaid to the Swingline Lender or to
the Administrative Agent, as applicable, if and to the extent such payment is
required to be refunded to the Borrower for any reason.  The purchase of participations in a Swingline
Loan pursuant to this paragraph shall not relieve the Borrower of any default
in the payment thereof.


 


Section 2.05.  Letters of Credit.  (a) General.  Subject to the terms and conditions set forth
herein, each Issuing Bank agrees to issue and amend (including, without
limitation, to increase or decrease the stated amount of each Letter of Credit)
at the request and for the account of the Borrower, one or more irrevocable
standby letters of credit denominated in dollars in such Issuing Bank’s then current
standard form with such revisions as shall be requested by the Borrower and
approved by such Issuing Bank (each, a “Letter of Credit”), at any time
and from time to time during the Availability Period, in an aggregate amount that will not result in (a) the sum of the
total Revolving Credit Exposures exceeding the total Commitments (disregarding,
solely for purposes of this clause (a), the Commitment and outstanding Loans of
any Defaulting Lender at such time) and (b) the aggregate face amount in
respect of all Letters of Credit issued and outstanding (together with any
related and unpaid reimbursement obligations) by such Issuing Bank (other than
Morgan Stanley Bank, N.A. and Credit Suisse AG, Cayman Islands branch)
exceeding the limit thereof (if any) separately agreed in writing between such
Issuing Bank and the Borrower and set forth for such Issuing Bank in the
Register maintained by the Administrative Agent pursuant to Section 9.04(c).  In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any
Notice of LC Request submitted by the Borrower or any Letter of Credit, the
terms and conditions of this Agreement shall control.  The relevant Issuing Bank shall not be under
any obligation to issue a Letter of Credit if any order, judgment or decree of
any Governmental Authority or arbitrator shall by its terms purport to enjoin
or restrain such Issuing Bank from issuing any Letter of Credit, or any law,
rule, regulation or orders of any Governmental Authority applicable to such
Issuing Bank or any request or directive (whether or not having the force of
law) from any Governmental Authority with jurisdiction over such Issuing Bank
shall prohibit, or request that such Issuing Bank refrain from, the issuance of
letters of credit generally or any Letter of Credit in particular or shall
impose upon such Issuing Bank with respect to any Letter of Credit any
restriction, reserve or capital requirement (for which such Issuing Bank is not
otherwise compensated hereunder) not in effect on the date hereof, or shall
impose upon such Issuing Bank any unreimbursed loss, cost or expense that was
not applicable on the date hereof and that such Issuing Bank in good faith
deems material to it.


 


(b)           Notice of Issuance, Amendment, Renewal, Extension;
Certain Conditions.  To request
the issuance of a Letter of Credit (or the amendment, renewal or extension of
an outstanding Letter of Credit), the Borrower shall hand deliver or telecopy
(or transmit by electronic communication, if arrangements for doing so have
been approved by the relevant Issuing Bank) to the relevant Issuing Bank and
the Administrative Agent (at least two (2) Business Days in advance of the
requested date of issuance, amendment,


 


40

















 


renewal or extension) a notice substantially in the
form of Exhibit D hereto (the “Notice of LC Request”) requesting
the issuance of a Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, and specifying the requested date of issuance of
such Letter of Credit (which shall be a Business Day) and, as applicable,
specifying the date of amendment, renewal or extension (which shall be a
Business Day), the date on which such Letter of Credit is to expire (which
shall comply with paragraph (c) of this Section), the amount of such
Letter of Credit, the name and address of the beneficiary thereof and such
other information as shall be necessary to prepare, amend, renew or extend such
Letter of Credit.  If requested by the
Issuing Bank, the Borrower also shall submit a letter of credit application on
the Issuing Bank’s standard form in connection with any request for a Letter of
Credit.  Such Issuing Bank will issue,
amend, renew or extend the requested Letter of Credit for the account of the
Borrower in such Issuing Bank’s then current standard form with such revisions
as shall be requested by the Borrower and approved by such Issuing Bank within
two (2) Business Days of the date of the receipt of the Notice of LC
Request and all related information required by such Issuing Bank to permit it
to comply (and to determine that it is in compliance) with applicable laws and
its own internal policies.  A Letter of
Credit shall be issued, amended, renewed or extended only if (and upon
issuance, amendment, renewal or extension of each Letter of Credit the Borrower
shall be deemed to represent and warrant that), after giving effect to such
issuance, amendment, renewal or extension the sum of the total Revolving Credit
Exposures shall not exceed the total Commitments.


 


(c)           Expiration Date.  Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date one year
after the date of the issuance of such Letter of Credit (or, in the case of any
renewal or extension thereof, one year after such renewal or extension) and (ii) the
date that is five (5) Business Days prior to the Maturity Date; provided that any Letter of Credit with a one-year tenor may
(x) be issued on a date that is within one year of the Maturity Date, or (y) provide
for the automatic renewal thereof for additional one-year periods, (which, in
no event, shall extend beyond the date referred to in clause (ii) of this
paragraph (c) unless, in each case, on the date of issuance of such
Letters of Credit, such Letters of Credit are cash collateralized in a manner
reasonably acceptable to the relevant Issuing Bank.


 


(d)           Participations.  By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the relevant Issuing Bank or the Lenders, such
Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from
such Issuing Bank, a participation in such Letter of Credit equal to such
Lender’s Applicable Percentage of the aggregate amount available to be drawn
under such Letter of Credit.  In
consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of the relevant Issuing Bank, such Lender’s Applicable Percentage
of each LC Disbursement made by such Issuing Bank and not reimbursed by the
Borrower on the date due as provided in paragraph (e) of this Section, or
of any reimbursement payment required to be refunded to the Borrower for any
reason.  Each Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this paragraph
in respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal or
extension of any Letter of Credit or the occurrence and continuance of a


 


41

















 


Default or reduction or termination of the Commitments,
and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever, subject to Section 2.16.


 


(e)           Reimbursement.  If any Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse
such LC Disbursement by paying to the Administrative Agent an amount equal to
such LC Disbursement not later than 5:00 p.m., New York City time, on the
date that such LC Disbursement is made, if the Borrower shall have received
notice of such LC Disbursement prior to 3:00 p.m., New York City time, on
such date, or, if such notice has not been received by the Borrower prior to
such time on such date, then not later than 5:00 p.m., New York City time,
on (i) the Business Day that the Borrower receives such notice, if such
notice is received prior to 3:00 p.m., New York City time, on the day of
receipt, or (ii) the Business Day immediately following the day that the
Borrower receives such notice, if such notice is not received prior to such time
on the day of receipt; provided
that, notwithstanding the amount requirements otherwise set forth in Section 2.02,
the Borrower may, subject to the conditions to borrowing set forth herein,
request in accordance with Section 2.03 or 2.04 that such payment be
financed with an ABR Revolving Borrowing or Swingline Loan in an equivalent
amount and, to the extent so financed, the Borrower’s obligation to make such
payment shall be discharged and replaced by the resulting ABR Revolving
Borrowing or Swingline Loan.  If the
Borrower fails to make such payment when due, the Administrative Agent shall
notify each Lender of the applicable LC Disbursement, the payment then due from
the Borrower in respect thereof and such Lender’s Applicable Percentage
thereof.  Promptly following receipt of
such notice, each Lender shall pay to the Administrative Agent its Applicable
Percentage of the payment then due from the Borrower, in the same manner as
provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06
shall apply, mutatis mutandis, to the payment obligations of the Lenders), and
the Administrative Agent shall promptly pay to the relevant Issuing Bank the
amounts so received by it from the Lenders. 
Promptly following receipt by the Administrative Agent of any payment
from the Borrower pursuant to this paragraph, the Administrative Agent shall
distribute such payment to the relevant Issuing Bank or, to the extent that
Lenders have made payments pursuant to this paragraph to reimburse such Issuing
Bank, then to such Lenders and such Issuing Bank as their interests may
appear.  Any payment made by a Lender
pursuant to this paragraph to reimburse an Issuing Bank for any LC Disbursement
(other than the funding of ABR Revolving Loans or a Swingline Loan as
contemplated above) shall not constitute a Loan and shall not relieve the
Borrower of its obligation to reimburse such LC Disbursement.


 


(f)            Obligations Absolute; Claims Against Issuing Banks;
Waivers; Exculpations; Limitations of Liability; Ratification.  The Borrower’s obligations hereunder to
reimburse LC Disbursements as provided in paragraph (e) of this Section shall
be absolute, unconditional and irrevocable and shall be performed strictly in
accordance with the terms of this Agreement, irrespective of:


 


(i)            any lack of
validity or enforceability relating to or against the Borrower or any Credit
Party for any reason of this Agreement or the Loan Documents.


 


42
















 


(ii)           if any other
person shall at any time have Guaranteed any of the Borrower’s obligations
hereunder or granted any security therefore, any change in the time, manner or
place of payment of or any other term of the obligations of such other person,


 


(iii)          any exchange,
change or release of any Collateral, or any release or waiver of any Guarantee,
for any of the Borrower’s obligations hereunder,


 


(iv)          the existence
of any claim, setoff, defense or other right that the Borrower or any other
person may have at any time against any beneficiary of the Letter of Credit
(including any second or substitute beneficiary or transferee under a
transferable letter of credit and any successor of a beneficiary by operation
of law), any assignee of proceeds of the Letter of Credit, any Issuing Bank or
any other person, whether in connection with any transaction contemplated by
this Agreement, a Letter of Credit or any unrelated transaction, or


 


(v)           any
presentation under a Letter of Credit being forged, fraudulent, invalid,
insufficient or abusive or any statement therein being untrue or inaccurate,


 


(vi)          any payment
under a Letter of Credit against a presentation that does not comply with the
terms and conditions of the Letter of Credit, or


 


(vii)         any other
circumstance that might, but for the provisions of this Section, constitute a
legal or equitable discharge of or defense to any or all of the Borrower’s
obligations hereunder.


 


(g)           Without limiting the foregoing, it is expressly
agreed that the absolute, unconditional and irrevocable obligation of the
Borrower to reimburse or pay the relevant Issuing Bank pursuant to this
Agreement will not be excused by ordinary negligence, gross negligence,
wrongful conduct or willful misconduct (as finally determined by a court of competent
jurisdiction) of such Issuing Bank. 
However, the foregoing shall not excuse the relevant Issuing Bank from
liability to the Borrower in any independent action or proceeding brought by
the Borrower against such Issuing Bank following such reimbursement or payment
by the Borrower to the extent of any unavoidable direct damages suffered by the
Borrower that are caused directly by such Issuing Bank’s gross negligence or
willful misconduct; provided that (i) such
Issuing Bank shall be deemed to have acted with due diligence and reasonable
care if it acts in accordance with standard letter of credit practice of
commercial banks located in New York City; and (ii) the Borrower’s
aggregate remedies against such Issuing Bank for wrongfully honoring a presentation
or wrongfully retaining honored documents shall in no event exceed the
aggregate amount paid by the Borrower to such Issuing Bank with respect to the
honored presentation, plus interest.


 


(h)           Without limiting any other provision of this
Agreement, the relevant Issuing Bank and, as applicable, its correspondents (if
any):


 


43

















 


(i)            may rely upon
any oral, telephonic, facsimile, electronic, written or other communication
believed in good faith (i.e., honesty in fact) to have been authorized by the
Borrower, whether or not given or signed by an authorized person,


 


(ii)           shall not be
responsible for errors, omissions, interruptions or delays in transmission or
delivery of any message, advice or document in connection with a Letter of
Credit, whether transmitted by courier, mail, telex, any other
telecommunication, or otherwise (whether or not encrypted), or for errors in
interpretation of technical terms or in translation (and such Issuing Bank and
its correspondents may transmit Letter of Credit terms without translating
them),


 


(iii)          shall not be
responsible for the identity or authority of any signer or the form, accuracy,
genuineness, falsification or legal effect of any presentation or payment
instruction under a Letter of Credit if such presentation or instruction
appears on its face to be in compliance with a Letter of Credit, even if the
purported signer is a customer of such Issuing Bank or its signature is
otherwise known to such Issuing Bank,


 


(iv)          shall not be
responsible for any acts or omissions by, or the solvency of, the beneficiary,
any nominated person or any other person,


 


(v)           may honor any
presentation under a Letter of Credit (A) which appears on its face to
substantially or reasonably comply with the terms and conditions of a Letter of
Credit, whether or not it appears on its face to strictly, exactly or literally
comply, (B) which is or appears on its face to have been signed or
presented by any purported successor of the beneficiary or any other party in
whose name a Letter of Credit requires or authorizes that any draft or other
document be signed, presented or issued, including any administrator, executor,
trustee in bankruptcy, liquidator, receiver, or successor by merger or
consolidation, or (C) which is or appears on its face to have been signed
or presented by the beneficiary after a change of name of the beneficiary,


 


(vi)          may replace an
original Letter of Credit, waive a requirement for its presentation, or provide
a replacement or copy to the beneficiary,


 


(vii)         may assert or
waive application of any provision of the UCP or the ISP and other customs and
practice primarily benefiting letter of credit issuers,


 


(viii)        may disregard
any requirement of a Letter of Credit that presentation be made to it at a
particular place or by a particular time of day (but not any requirement for
presentation by a particular day),


 


(ix)           may honor a
previously dishonored presentation under a Letter of Credit, whether pursuant
to court order, to settle or compromise any claim that it wrongfully
dishonored, or otherwise, and shall be entitled to reimbursement to 


 


44

















 


the
same extent (if any) as if it had initially honored plus reimbursement of any
interest paid by it,


 


(x)            may pay any
paying or negotiating bank (designated or permitted by the terms of a Letter of
Credit) claiming that it rightfully honored or is entitled to reimbursement or
indemnity under the laws or practice of the place where it is located,


 


(xi)           may make any
payment under or in connection with a Letter of Credit by any means it chooses,
including by wire transfer or by check,


 


(xii)          may dishonor
any presentation (A) with the Borrower’s authorization or (B) for
which the Borrower is unable or unwilling to reimburse or indemnify such
Issuing Bank; provided that the Borrower
recognizes and agrees that the circumstances described in this paragraph may
not relieve such Issuing Bank or its correspondents from any obligations to the
beneficiary, any confirmer or other nominated person, or any other person,


 


(xiii)         may select any
branch or Affiliate of such Issuing Bank or any other bank to act as advising,
transferring, confirming and/or nominated bank under the law and practice of
the place where it is located (if the application submitted by the Borrower for
a Letter of Credit does not prohibit advice, transfer, confirmation and/or
nomination or such selection),


 


(xiv)        shall not be
responsible for any other action or inaction taken or suffered by such Issuing
Bank or its correspondents under or in connection with a Letter of Credit or
any presentation or demand, if required or permitted under any applicable
domestic or foreign law or the ISP and/or UCP,


 


(xv)         shall have no
obligation to issue any Letter of Credit or take any action which would violate
any provision of law applicable to such Issuing Bank or a Letter of Credit or
which such Issuing Bank determines could subject it to an unreasonable legal
risk or liability, and


 


(xvi)        none of the
circumstances described in this Section 2.05(h) shall impair or waive
such Issuing Bank’s rights and remedies against the Borrower or place such
Issuing Bank or any of its correspondents under any liability to the Borrower.


 


(i)            Neither the relevant Issuing Bank nor any of its
correspondents shall be liable in contract, tort, or otherwise for any
punitive, exemplary, consequential or special damages.  Examples of damages which are indirect and
may not be shifted to or recovered from such Issuing Bank include damages to
the extent attributable to:


 


(i)            any change in
the value of any foreign currency or any services, goods or other property for
which payment is supported by a Letter of Credit,


 


45

















 


(ii)           forged documents
or fraud by the beneficiary or any other person (except to the extent that such
Issuing Bank had knowledge of the foregoing) or


 


(iii)          breach by the
beneficiary of any obligation underlying a Letter of Credit.


 


(j)            Independence; Borrower Responsibility.


 


(i)            The Borrower
acknowledges that the rights and obligations of the relevant Issuing Bank under
each Letter of Credit are independent of the existence, performance or
nonperformance of any contract or arrangement underlying the Letter of Credit,
including contracts or arrangements between such Issuing Bank and the Borrower
and contracts or arrangements between the Borrower and the beneficiary.  The relevant Issuing Bank may, without
incurring any liability to the Borrower or impairing its entitlement to
reimbursement or indemnity under this Agreement, (i) honor a Letter of
Credit despite notice from the Borrower of, and without any duty to inquire
into, any defense to honor or any adverse claim or other right against the
beneficiary or any other person, or (ii) dishonor a Letter of Credit for
fraud or forgery.  The relevant Issuing
Bank shall have no duty to request or require the presentation of any document,
including any default certificate, not required to be presented under the terms
and conditions of a Letter of Credit. 
The relevant Issuing Bank shall have no duty to seek any waiver of
discrepancies from the Borrower, nor any duty to grant any waiver of
discrepancies which the Borrower approves or requests.


 


(ii)           The Borrower is
responsible for preparing or approving the text of each Letter of Credit.  The Borrower shall use the relevant Issuing
Bank’s then-current standard form together with such amendments thereto as are
acceptable to such Issuing Bank in its sole discretion. The Borrower’s ultimate
responsibility for the final text shall not be affected by any assistance the
relevant Issuing Bank may provide such as drafting or recommending text or by
such Issuing Bank’s use or refusal to use text submitted by the Borrower.  The Borrower acknowledges that the Borrower
has been represented by legal counsel of its choice in connection with the
execution and delivery of this Agreement and with respect to the issuance and
form of each Letter of Credit, that the relevant Issuing Bank does not
represent or warrant that the Letter of Credit will satisfy the Borrower’s
requirements or intentions, and that the Borrower is responsible for the
suitability of the Letter of Credit for the Borrower’s purposes.


 


(k)           Non-Documentary Conditions.  The Issuing Banks are authorized (but shall
not hereby be required) to honor any presentation without regard to any non
documentary term or condition stated in the Letter of Credit.


 


(l)            Transfers.  If a Letter of Credit is in transferable
form, no Issuing Bank shall have a duty to determine the proper identity of
anyone appearing in any transfer request, draft or other document as
transferee, nor shall any Issuing Bank be responsible for the validity or
correctness of any transfer made pursuant to documents that appear on


 


46

















 


their face to be substantially in accordance with
the terms and conditions of the Letter of Credit.


 


(m)          Extensions and Modifications; Waivers of
Discrepancies.  This
Agreement shall be binding upon the Borrower with respect to any replacement,
extension, transfer or modification of a Letter of Credit or waiver of
discrepancies authorized by the Borrower. 
The Borrower’s obligations to the relevant Issuing Bank under this
Agreement or in respect of each Letter of Credit shall not be reduced or
impaired by any agreement by such Issuing Bank and the beneficiary extending or
shortening such Issuing Bank’s time after presentation to examine documents or
to honor or give notice of discrepancies. 
Except as provided elsewhere in this Agreement or as may be provided in
a Letter of Credit or otherwise specifically agreed to in writing by the
relevant Issuing Bank in its sole discretion, such Issuing Bank shall have no
duty to (i) extend the expiration date or term of any Letter of Credit or (ii) otherwise
amend or modify any Letter of Credit.


 


(n)           Disbursement Procedures.  The relevant Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. 
The relevant Issuing Bank shall promptly notify the Administrative Agent
by telephone (confirmed by telecopy) or electronic mail of such demand for
payment and whether such Issuing Bank has made or will make an LC Disbursement
thereunder; provided that any failure to give or
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse such Issuing Bank and the Lenders with respect to any such LC
Disbursement.


 


(o)           Interim Interest.  If any Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans; provided that, if the Borrower fails to
reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, then Section 2.12(d) shall apply.  Interest accrued pursuant to this paragraph
shall be for the account of the relevant Issuing Bank, except that interest
accrued on and after the date of payment by any Lender pursuant to paragraph (e) of
this Section to reimburse such Issuing Bank shall be for the account of
such Lender to the extent of such payment.


 


(p)           Replacement of Issuing Bank.  Any Issuing Bank may be replaced at any time
by written agreement among the Borrower, the Administrative Agent, the replaced
Issuing Bank and the successor Issuing Bank. 
The Administrative Agent shall notify the Lenders of any such
replacement of an Issuing Bank.  At the
time any such replacement shall become effective, the Borrower shall pay all
unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.11(b).  From and after the effective date of any such
replacement, (i) the successor Issuing Bank shall have all the rights and
obligations of an Issuing Bank under this Agreement with respect to Letters of
Credit to be issued thereafter and (ii) references herein to the term “Issuing
Bank” shall be deemed to refer to such successor or to any previous Issuing
Bank, or to such successor and all previous Issuing Banks, as the context shall
require.  After the replacement of an
Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto
and shall continue


 


47

















 


to have all the rights and obligations of an Issuing
Bank under this Agreement with respect to Letters of Credit issued by it prior
to such replacement, but shall not be required to issue additional Letters of
Credit.


 


(q)           Cash Collateralization.  If any Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Lenders with LC Exposure representing greater than 50% of
the total LC Exposure) demanding the deposit of cash collateral pursuant to
this paragraph, the Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Lenders, an amount in cash equal to the LC Exposure as of such
date plus any accrued and unpaid interest thereon; provided that the obligation to deposit such cash collateral
shall become effective immediately, and such deposit shall become immediately
due and payable, without demand or other notice of any kind, upon the
occurrence of any Event of Default with respect to the Borrower described in
clause (h) or (i) of Article 7. 
Such deposit shall be held by the Administrative Agent as collateral for
the payment and performance of the obligations of the Borrower under this
Agreement.  The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account.  Cash in
such account shall earn interest and at the option and sole discretion of the
Administrative Agent and at the Borrower’s risk and expense, amounts in such
account may be invested in Cash Equivalents. 
Interest or profits, if any, on such investments shall accumulate in
such account.  Moneys in such account
shall be applied by the Administrative Agent to reimburse the relevant Issuing
Bank for LC Disbursements for which it has not been reimbursed and, to the
extent not so applied, shall be held for the satisfaction of the reimbursement
obligations of the Borrower for the LC Exposure at such time or, if the
maturity of the Loans has been accelerated (but subject to the consent of
Lenders with LC Exposure representing greater than 50% of the total LC
Exposure), be applied to satisfy other obligations of the Borrower under this
Agreement.  If the Borrower is required
to provide an amount of cash collateral hereunder as a result of the occurrence
of an Event of Default, such amount (to the extent not applied as aforesaid)
shall be returned to the Borrower within three Business Days after all Events
of Default have been cured or waived.


 


Section 2.06.  Funding of Borrowings.  (a) Each Lender shall make
each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 12:00 noon, New York City time, to
the account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders; provided
that Swingline Loans shall be made as provided in Section 2.04.  The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts so received, in
like funds, to an account of the Borrower maintained with the Administrative
Agent in New York City and designated by the Borrower in the applicable
Borrowing Request; provided that
ABR Revolving Loans made to finance the reimbursement of an LC Disbursement as
provided in Section 2.05(e) shall be remitted by the Administrative
Agent to the relevant Issuing Bank.


 


(b)           Unless the Administrative Agent shall have received
notice from a Lender prior to the proposed date of any Borrowing that such
Lender will not make available to


 


48

















 


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 paragraph (a) of this Section and
may, in reliance upon such assumption, make available to the Borrower 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 Borrower
severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount with interest thereon, for each day from and including the
date such amount is made available to the Borrower to but excluding the date of
payment to the Administrative Agent, at (i) in the case of such Lender,
the greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation or (ii) in the case of the Borrower, the interest rate
applicable to ABR Loans.  If such Lender
pays such amount to the Administrative Agent, then such amount shall constitute
such Lender’s Loan included in such Borrowing.


 


Section 2.07.  Interest Elections.  (a) Each Revolving Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurodollar Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request.  Thereafter, the Borrower may elect to convert
such Borrowing to a different Type or to continue such Borrowing and, in the
case of a Eurodollar Revolving Borrowing, may elect Interest Periods therefor,
all as provided in this Section.  The
Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding the Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing.  This Section shall not apply to
Swingline Borrowings, which may not be converted or continued.


 


(b)           To make an election pursuant to this Section, the
Borrower shall notify the Administrative Agent of such election by telephone by
the time that a Borrowing Request would be required under Section 2.03 if
the Borrower were requesting a Revolving Borrowing of the Type resulting from
such election to be made on the effective date of such election.  Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery
or telecopy to the Administrative Agent of a written Interest Election
Request  in a form approved by the
Administrative Agent and signed by the Borrower.


 


(c)           Each telephonic and written Interest Election
Request shall specify the following information in compliance with Section 2.03:


 


(i)            the Borrowing
to which such Interest Election Request applies and, if different options are
being elected with respect to different portions thereof, the portions thereof
to be allocated to each resulting Borrowing (in which case the information to
be specified pursuant to clauses (iii) and (iv) below shall be
specified for each resulting Borrowing);


 


(ii)           the effective
date of the election made pursuant to such Interest Election Request, which
shall be a Business Day;


 


49

















 


(iii)          whether the
resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and


 


(iv)          if the resulting
Borrowing is a Eurodollar Borrowing, the Interest Period to be applicable
thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term “Interest Period”.


 


If any such Interest Election Request requests a
Eurodollar Borrowing but does not specify an Interest Period, then the Borrower
shall be deemed to have selected an Interest Period of one month’s duration,
subject to the definition of the term “Interest Period”.


 


(d)           Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the details
thereof and of such Lender’s portion of each resulting Borrowing.


 


(e)           If the Borrower fails to deliver a timely Interest
Election Request with respect to a Eurodollar Revolving Borrowing prior to the
end of the Interest Period applicable thereto, then, unless such Borrowing is
repaid as provided herein or an Event of Default is continuing, at the end of
such Interest Period such Borrowing shall be converted to an Interest Period of
one month’s duration, subject to the definition of the term “Interest Period”.  Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies the
Borrower, then, so long as an Event of Default is continuing (i) no
outstanding Revolving Borrowing may be converted to or continued as a
Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Revolving
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.


 


Section 2.08.  Termination and Reduction of
Commitments.  (a) Unless
previously terminated, the Commitments shall terminate on the Maturity Date.


 


(b)           The Borrower may at any time terminate, or from time
to time reduce, the Commitments; provided
that (i) each reduction of the Commitments shall be in an amount that is
an integral multiple of $5,000,000 and not less than $10,000,000 and (ii) the
Borrower shall not terminate or reduce the Commitments if, after giving effect
to any concurrent prepayment of the Loans in accordance with Section 2.10,
the sum of the Revolving Credit Exposures would exceed the total Commitments.


 


(c)           The Borrower shall notify the Administrative Agent
of any election to terminate or reduce the Commitments under paragraph (b) of
this Section at least three (3) Business Days prior to the effective
date of such termination or reduction, specifying such election and the
effective date thereof.  Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof.  Each
notice delivered by the Borrower pursuant to this Section shall be
irrevocable; provided that a
notice of termination of the Commitments delivered by the Borrower may state
that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice
to the Administrative Agent on or


 


50

















 


prior to the specified effective date) if such
condition is not satisfied.  Any
termination or reduction of the Commitments shall be permanent.  Each reduction of the Commitments shall be
made ratably among the Lenders in accordance with their respective Commitments.


 


Section 2.09.  Repayment of Loans; Evidence
of Debt.  (a) The
Borrower hereby unconditionally promises to pay (i) to the Administrative
Agent for the account of each Lender the then unpaid principal amount of each
Revolving Loan on the Maturity Date and (ii) to the Swingline Lender the
then unpaid principal amount of each Swingline Loan on the earlier of the
Maturity Date and the first date after such Swingline Loan is made that is the
15th or last day of a calendar month and is at least four (4) Business
Days after such Swingline Loan is made; provided
that on each date that a Revolving Borrowing is made, the Borrower shall repay
all Swingline Loans then outstanding.


 


(b)           Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the indebtedness of the
Borrower to such Lender resulting from each Loan made by such Lender, including
the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.


 


(c)           The Administrative Agent shall maintain accounts in
which it shall record (i) the amount of each Loan made hereunder, the Class and
Type thereof and the Interest Period applicable thereto, (ii) the amount
of any principal or interest due and payable or to become due and payable from
the Borrower to each Lender hereunder and (iii) the amount of any sum
received by the Administrative Agent hereunder for the account of the Lenders
and each Lender’s share thereof.


 


(d)           The entries made in the accounts maintained pursuant
to paragraph (b) or (c) of this Section shall be conclusive  evidence of the existence and amounts of the obligations
recorded therein absent manifest error; provided that
the failure of any Lender or the Administrative Agent to maintain such accounts
or any error therein shall not in any manner affect the obligation of the
Borrower to repay the Loans in accordance with the terms of this Agreement.


 


(e)           Any Lender may request that Loans made by it be
evidenced by a promissory note.  In such
event, the Borrower shall prepare, execute and deliver to such Lender a
promissory note payable to the order of such Lender (or, if requested by such
Lender, to such Lender and its registered assigns) and in a form approved by
the Administrative Agent.  Thereafter,
the Loans evidenced by such promissory note and interest thereon shall at all
times (including after assignment pursuant to Section 9.04) be represented
by one or more promissory notes in such form payable to the order of the payee
named therein (or, if such promissory note is a registered note, to such payee
and its registered assigns).


 


Section 2.10.  Prepayment of Loans.  (a) The Borrower shall have
the right at any time and from time to time to prepay any Borrowing in whole or
in part, subject to the provisions of this Section.


 


51
















 


(b)           The Borrower shall notify the Administrative Agent (and,
in the case of prepayment of a Swingline Loan, the Swingline Lender) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the
case of prepayment of a Eurodollar Revolving Borrowing, not later than 11:00 a.m.,
New York City time, three (3) Business Days before the date of prepayment,
(ii) in the case of prepayment of an ABR Revolving Borrowing, not later
than 11:00 a.m., New York City time, one (1) Business Day before the
date of prepayment or (iii) in the case of prepayment of a Swingline Loan,
not later than 12:00 noon, New York City time, on the date of prepayment.  Each such notice shall be irrevocable and
shall specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid, which prepayment amount shall be $1,000,000 or
an integral multiple of $500,000 in excess thereof; provided
that, if a notice of prepayment is given in connection with a conditional
notice of termination of the Commitments as contemplated by Section 2.08,
then such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.08. 
Promptly following receipt of any such notice relating to a Revolving
Borrowing, the Administrative Agent shall advise the Lenders of the contents
thereof.   Each partial prepayment of any
Revolving Borrowing shall be in an amount that would be permitted in the case
of an advance of a Revolving Borrowing of the same Type as provided in Section 2.02.  Each prepayment of a Revolving Borrowing
shall be applied ratably to the Loans included in the prepaid Borrowing.  Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.12.


 


(c)           Excess Revolving Credit
Exposures.  If, immediately
after any reduction of the Commitments pursuant to Section 2.08(b), the
total Revolving Credit Exposures would exceed the total Commitments, the
Borrower shall, concurrently with such reduction, prepay Revolving Borrowings
or Swingline Loans in an amount equal to such excess.


 


Section 2.11.  Fees.  (a) The Borrower agrees to
pay to the Administrative Agent for the account of each Lender an unused
commitment fee (an “Unused Commitment Fee”),
which shall accrue at the Applicable Rate noted under the caption “Unused
Commitment Fee Rate” on the average daily unused amount of the Commitment of
such Lender (determined, solely for purposes of determining the Unused
Commitment Fee, without regard to any outstanding Swingline Loans) during the
period from the Effective Date to but excluding the date on which such
Commitment terminates; provided that
no Unused Commitment Fee shall accrue on the Commitment of a Defaulting Lender
so long as such Lender shall be a Defaulting Lender.  Accrued Unused Commitment Fees shall be
payable in arrears on the last day of March, June, September and December of
each year and on the date on which the Commitments terminate, commencing on the
first such date to occur after the date hereof. 
All Unused Commitment Fees shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).


 


(b)           The Borrower agrees to pay (i) to the Administrative
Agent for the account of each Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same Applicable
Rate used to determine the interest rate applicable to Eurodollar Revolving
Loans on the average daily amount of such Lender’s LC Exposure (excluding any
portion thereof attributable to unreimbursed LC


 


52

















 


Disbursements) during the period from and including
the Effective Date to but excluding the later of the date on which such Lender’s
Commitment terminates and the date on which such Lender ceases to have any LC
Exposure, and (ii) to the relevant Issuing Bank a fronting fee, which
shall accrue at the rate of 0.25% per annum on the average daily amount of the
LC Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but excluding
the later of the date of termination of the Commitments and the date on which
there ceases to be any LC Exposure, as well as such Issuing Bank’s standard and
customary fees with respect to the issuance, amendment, renewal or extension of
any Letter of Credit or processing of drawings thereunder.  Participation fees and fronting fees accrued
through and including the last day of March, June, September and December of
each year shall be payable on the third Business Day following such last day,
commencing on the first such date to occur after the Effective Date; provided that all such fees shall be
payable on the date on which the Commitments terminate and any such fees
accruing after the date on which the Commitments terminate shall be payable on
demand.  Any other fees payable to the
Issuing Banks pursuant to this paragraph shall be payable within 10 days after
demand.  All participation fees and
fronting fees shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day).


 


(c)           The Borrower agrees to pay to the Administrative Agent, for
its own account, fees payable in the amounts and at the times separately agreed
upon in writing between the Borrower and the Administrative Agent.


 


(d)           All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent (or to the relevant
Issuing Bank, in the case of fees payable to it) for distribution, in the case
of the Unused Commitment Fees and participation fees, to the Lenders.  Fees paid shall not be refundable under any
circumstances.


 


Section 2.12.  Interest.  (a) The Loans comprising each
ABR Borrowing (including each Swingline Loan) shall bear interest at the
Alternate Base Rate plus the Applicable Rate under the caption “ABR
Spread.”


 


(b)           The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate under the caption “Eurodollar Spread.”


 


(c)           Notwithstanding the foregoing, if at any time an Event of
Default is continuing (including, without limitation, as a result of any
principal of or interest on any Loan or any fee or other amount payable by the
Borrower hereunder not being paid when due, whether at stated maturity, upon
acceleration or otherwise) each Loan or other amount shall bear interest, after
as well as before judgment, at a rate per annum equal to (i) in the case
of principal of any Loan, 2% plus the rate otherwise applicable to such
Loan as provided in the preceding paragraphs of this Section or (ii) in
the case of any other amount, 2% plus the rate applicable to ABR Loans
as provided in paragraph (a) of this Section.


 


53

















 


(d)           Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan and, in the case of Revolving
Loans, upon termination of the Commitments; provided
that (i) interest accrued pursuant to paragraph (c) of this Section shall
be payable on demand, (ii) in the event of any repayment or prepayment of
any Loan (other than a prepayment of an ABR Revolving Loan prior to the end of
the Availability Period), accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment and (iii) in
the event of any conversion of any Eurodollar Revolving Loan prior to the end
of the current Interest Period therefor, accrued interest on such Loan shall be
payable on the effective date of such conversion.


 


(e)           All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate
shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).  The applicable Alternate Base Rate, Adjusted
LIBO Rate or LIBO Rate shall be determined by the Administrative Agent in good
faith, and such determination shall be conclusive absent manifest error.


 


Section 2.13.  Alternate Rate of
Interest.  If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:


 


(a)           the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable means
do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period; or


 


(b)           the Administrative Agent is advised by the Required
Lenders that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such
Interest Period will not adequately and fairly reflect the cost to such Lenders
(or Lender) of making or maintaining their Loans (or its Loan) included in such
Borrowing for such Interest Period;


 


then
the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be
ineffective and (ii) if any Borrowing Request requests a Eurodollar
Revolving Borrowing, such Borrowing shall be made as an ABR Borrowing; provided that if the circumstances giving rise to such
notice affect only one Type of Borrowings, then the other Type of Borrowings
shall be permitted.


 


Section 2.14.  Increased Costs.  (a) If any Change in Law
shall:


 


(i)            impose, modify or
deem applicable any reserve, special deposit or similar requirement against
assets of, deposits with or for the account of, or


 


54

















 


credit
extended by, any Lender (except any such reserve requirement reflected in the
Adjusted LIBO Rate) or Issuing Bank; or


 


(ii)           impose on any
Lender or Issuing Bank or the London interbank market any other condition
affecting this Agreement or Eurodollar 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
of making or maintaining any Eurodollar Loan (or of maintaining its obligation
to make such Loan) or to increase the cost to such Lender or Issuing Bank of
participating in, issuing or maintaining any Letter of Credit or to reduce the
amount of any sum received or receivable by such Lender or Issuing Bank
hereunder (whether of principal, interest or otherwise), then the Borrower will
pay to such Lender or Issuing Bank, as the case may be, such additional amount
or amounts as will compensate such Lender or Issuing Bank, as the case may be,
for such additional costs incurred or reduction suffered.


 


(b)           If any Lender or Issuing Bank determines in good faith
that any Change in Law regarding capital requirements has or would have the
effect of reducing the rate of return on such Lender or Issuing Bank’s capital
or on the capital of such Lender or Issuing Bank’s holding company, if any, as
a consequence of this Agreement or the Loans made by, or participations in Letters
of Credit held by, such Lender, or the Letters of Credit issued by such Issuing
Bank, to a level materially below that which such Lender or Issuing Bank or
such Lender or Issuing Bank’s holding company could have achieved but for such
Change in Law (taking into consideration such Lender or Issuing Bank’s standard
policies and the standard policies of such Lender or Issuing Bank’s holding
company with respect to capital adequacy), then from time to time the Borrower
will pay to such Lender or Issuing Bank, as the case may be, such additional
amount or amounts as will compensate such Lender or Issuing Bank or such Lender
or Issuing Bank’s holding company for any such reduction suffered.


 


(c)           A certificate of a Lender or Issuing Bank setting forth
the amount or amounts necessary to compensate such Lender or the Issuing Bank
or its holding company, as the case may be, as specified in paragraph Section 2.14(a) or
Section 2.14(b) of this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error.  The Borrower shall pay such Lender or Issuing
Bank, as the case may be, the amount shown as due on any such certificate
within 10 days after receipt thereof.  Notwithstanding
the foregoing, any increased costs due to Taxes shall be governed solely by Section 2.16.


 


(d)           Failure or delay on the part of any Lender or Issuing Bank
to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be
required to compensate a Lender or Issuing Bank pursuant to this Section for
any increased costs or reductions incurred more than 270 days prior to the date
that such Lender or Issuing Bank, as the case may be, notifies the Borrower of
the Change in Law giving rise to such increased costs or reductions and of such
Lender or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in
Law 


 


55

















 


giving rise to such increased costs or reductions is
retroactive, then the 270-day period referred to above shall be extended to
include the period of retroactive effect thereof.


 


Section 2.15.  Break Funding Payments.  In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of
an Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last
day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Eurodollar Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.10(b) and is revoked in accordance therewith) or (d) the
assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.18,
then, in any such event, the Borrower shall compensate each Lender for the
loss, cost and expense attributable to such event.  In the case of a Eurodollar Loan, such loss,
cost or expense to any Lender shall be deemed to include an amount determined
by such Lender to be the excess, if any, of (i) the amount of interest
which would have accrued on the principal amount of such Loan had such event
not occurred, at the Adjusted LIBO Rate that would have been applicable to such
Loan, for the period from the date of such event to the last day of the then
current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period
for such Loan), over (ii) the amount of interest which would accrue on
such principal amount for such period at the interest rate which such Lender
would bid were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period from other banks in the eurodollar
market.  A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to receive
pursuant to this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error.  The
Borrower shall pay such Lender the amount shown as due on any such certificate
within 10 days after receipt thereof.


 


Section 2.16.  Taxes.  (a) Any and all payments by
or on account of any obligation of the Borrower hereunder shall be made free
and clear of and without deduction for any Taxes, subject to the following
sentence.  If the Borrower shall be
required to deduct any Taxes from any and all payments by or on account of any
obligation of the Borrower hereunder, then (i) with respect to Indemnified
Taxes or Other Taxes, the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
Issuing Bank (as the case may be) receives an amount equal to the sum it would have
received had no such deductions for Indemnified Taxes or Other Taxes been made,
(ii) the Borrower shall make such deductions and (iii) the Borrower
shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.


 


(b)           Without duplication, the Borrower shall pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable law.


 


(c)           Without duplication, the Borrower shall indemnify the
Administrative Agent, each Issuing Bank and each Lender, within 15 days after
written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes paid by the Administrative


 


56

















 


Agent, such Issuing Bank or such Lender, as the case
may be, on or with respect to any payment by or on account of any obligation of
the Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and
reasonable out-of-pocket expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of any Indemnified
Taxes or Other Taxes paid by the Lender, Issuing Bank or the Administrative
Agent on its own behalf or on behalf of a Lender or an Issuing Bank, as the
case may be, delivered to the Borrower shall be conclusive absent manifest
error.


 


(d)           As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.


 


(e)           Any Lender, Issuing Bank or Agent Party that is entitled
to an exemption from or reduction of withholding tax under the law of the
jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall
deliver to the Borrower and/or to any applicable Governmental Authority (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by
applicable law or reasonably requested by the Borrower as will permit such
payments to be made without withholding or at a reduced rate of withholding.  Without limiting the generality of the
foregoing, each Lender, Issuing Bank and Agent Party shall deliver to the
Borrower and the Administrative Agent on or prior to the date on which such
Lender, Issuing Bank or Agent Party, as applicable, becomes a party to this
Agreement (and from time to time thereafter upon the expiration or invalidity
of any of the certificates or IRS forms described below or upon the request of
the Borrower or the Administrative Agent), two (2) original copies of
whichever of the following is applicable:


 


(i)            duly completed and executed IRS Form W-8BEN
(or successor forms) establishing eligibility for benefits of an income tax
treaty to which the United States is a party or that such party is not subject
to deduction or withholding of United States federal income tax,


 


(ii)           duly completed and executed IRS Form W-8ECI
(or successor forms), establishing that such party is not subject to deduction
or withholding of United States federal income tax,


 


(iii)          in the case of a party claiming the
benefits of the exemption for portfolio interest under Section 881(c) of
the Code, (x) duly executed Certificate Regarding Non-Bank Status,
substantially in the form of Exhibit H, and (y) duly completed and
executed IRS Form W-8BEN (or successor forms), or


 


57

















 


(iv)          IRS Form W-9 (or successor
forms), establishing that such party is not subject to backup withholding or
information reporting requirements.


 


Notwithstanding any other
provisions of this paragraph, any Lender, Issuing Bank or Agent Party shall not
be required to deliver any form or certificate pursuant to this paragraph that
such Lender, Issuing Bank or Agent Party, as applicable, is not legally able to
deliver.


 


(f)            If the Administrative Agent, an Issuing Bank or a Lender determines,
in its reasonable discretion, that it has received a refund of any Taxes or
Other Taxes as to which it has been indemnified by the Borrower or with respect
to which the Borrower has paid additional amounts pursuant to this Section 2.16,
it shall pay over such refund to the Borrower (but only to the extent of
indemnity payments made, or additional amounts paid, by the Borrower under this
Section 2.16 with respect to the Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of the Administrative Agent, such
Issuing Bank or such Lender, as applicable, and without interest (other than
any interest paid by the relevant Governmental Authority with respect to such
refund); provided that the Borrower, upon the
request of the Administrative Agent, such Issuing Bank or such Lender, agrees
to repay the amount paid over to the Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the
Administrative Agent, such Issuing Bank or such Lender in the event the
Administrative Agent, such Issuing Bank or such Lender is required to repay
such refund to such Governmental Authority. This Section shall not be
construed to require the Administrative Agent, any Issuing Bank or any Lender
to make available its tax returns (or any other information relating to its
taxes which it deems confidential) to the Borrower or any other Person.


 


(g)           At
the Borrower’s request and at the Borrower’s cost, each Lender, Issuing Bank
and Agent Party shall take reasonable steps (i) to contest such Lender’s,
such Issuing Bank’s or Agent Party’s, as applicable, liability for Taxes that
have not been paid or (ii) to seek a refund of Taxes, if such steps would
not subject such Lender, Issuing Bank or Agent Party, as applicable, to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender, Issuing Bank or Agent Party, as applicable.


 


Section 2.17.  Payments Generally; Pro Rata
Treatment; Sharing of Set-offs.  (a) The
Borrower shall make each payment required to be made by it hereunder (whether
of principal, interest, fees or reimbursement of LC Disbursements, or of
amounts payable under Section 2.14, 2.15 or 2.16, or otherwise) prior to
3:00 pm, New York City time, on the date when due, in immediately
available funds, without set off or counterclaim.  Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon.  All such payments
shall be made to the Administrative Agent at its offices at One Pierrepoint
Plaza, 7th Floor, 300 Cadman Plaza West, Brooklyn, New
York 11201, except payments to be made directly to an Issuing Bank or Swingline
Lender as expressly provided herein and except that payments pursuant to
Sections 2.14, 2.15, 2.16 and 9.03 shall be made directly to the Persons
entitled thereto.  The Administrative
Agent shall distribute any such payments received by it for the account of any
other Person to the appropriate recipient promptly following


 


58

















 


receipt thereof.  If any payment hereunder shall be due on a
day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such
extension.  All payments hereunder shall
be made in dollars.


 


(b)           If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds
shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second,
towards payment of principal and unreimbursed LC Disbursements then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed LC Disbursements then due to such
parties; provided that if such payment is (x) a
prepayment of the principal amount of any Loans or unreimbursed LC
Disbursements for which a Defaulting Lender has funded its participation
obligations and (y) made at a time when the conditions set forth in Section 4.02
are satisfied, such payment shall be applied solely to prepay the Loans and
reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to
being applied to the prepayment of any Loans or reimbursement obligations owed
to, any Defaulting Lender.


 


(c)           If any Lender shall, by exercising any right of set off or
counterclaim or otherwise, obtain payment in respect of any principal of or interest
on any of its Revolving Loans or participations in LC Disbursements or
Swingline Loans resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans and participations in
LC Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans and participations in LC Disbursements and Swingline Loans of
other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Revolving Loans and
participations in LC Disbursements and Swingline Loans; provided
that (i) if any such participations are purchased and all or any portion
of the payment giving rise thereto is recovered,  such participations shall be rescinded and
the purchase price restored to the extent of such recovery, without interest,
and (ii) the provisions of this paragraph shall not be construed to apply
to any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans or participations in LC Disbursements to any assignee or participant,
other than to the Borrower or any Subsidiary or Affiliate thereof (as to which
the provisions of this paragraph shall apply). 
The Borrower consents 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
Borrower rights of set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.


 


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(d)           Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or an Issuing Bank
hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to
the Lenders or Issuing Banks, as the case may be, the amount due.  In such event, if the Borrower has not in
fact made such payment, then each of the Lenders or Issuing Banks, as the case
may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or Issuing Bank 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
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on
interbank compensation.


 


(e)           If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b),
2.17(d) or 9.03(c), then the Administrative Agent may, in its good faith
discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for the account of such Lender
to satisfy such Lender’s obligations under such Sections until all such
unsatisfied obligations are fully paid.


 


Section 2.18.  Mitigation Obligations;
Replacement of Lenders.  (a) If
any Lender requests compensation under Section 2.14, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, then
such Lender shall 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 judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.14 or 2.16, as
the case may be, in the future and (ii) would not subject such Lender to
any unreimbursed cost or expense and would not otherwise be disadvantageous to
such Lender.  The Borrower hereby agrees
to pay all reasonable costs and expenses incurred by any Lender in connection
with any such designation or assignment.


 


(b)           If any Lender requests compensation under Section 2.14,
or if the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 2.16,
or if any Lender becomes a Defaulting Lender, or any Lender becomes a “Nonconsenting
Lender” (hereinafter defined), then the Borrower may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in Section 9.04), all its interests, rights
and obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the
Borrower shall have received the prior written consent of the Administrative
Agent (and if a Commitment is being assigned, the relevant Issuing Bank), which
consent, in each case, shall not unreasonably be withheld or delayed, (ii) such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and participations in LC Disbursements and Swingline


 


60

















 


Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts) and (iii) in the case of any such
assignment resulting from a claim for compensation under Section 2.14 or
payments required to be made pursuant to Section 2.16, such assignment
will result in a reduction in such compensation or payments.  A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply. In the event that (x) the
Borrower 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 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 Borrower shall have against the replaced Lender.


 


Section 2.19.  Optional Increase in
Commitments.  At any time the
Borrower, may, if it so elects, increase the aggregate amount of the
Commitments, either by designating one or more financial institutions not
theretofore a Lender (each, a “New Lender”) to
become a Lender (such designation to be effective only with the prior written
consent of the Administrative Agent, which consent will not be unreasonably
withheld or delayed), and/or by agreeing with one or more existing Lenders
(each, an “Increasing Lender”) that each such
Lender’s Commitment shall be increased. 
Upon execution and delivery by the Borrower and such Lender or other
financial institution of an instrument in form reasonably satisfactory to the
Administrative Agent, each such New Lender and Increasing Lender shall have a
Commitment as set forth in such instrument with all the rights and obligations
of a Lender with such a Commitment hereunder; provided that:


 


(i)            no Event of Default
shall have occurred and be continuing immediately before or after giving effect
to such increase;


 


(ii)           the Borrower shall
provide prompt notice of such increase to the Administrative Agent, who shall
promptly notify the Lenders;


 


(iii)          any such increase
shall be in an amount greater than or equal to $10,000,000;


 


(iv)          immediately after
such increase is made, the aggregate amount of increases in the Commitments
pursuant to this Section 2.19 shall not exceed $50,000,000;


 


(v)           any such increase in
the Commitments shall not constitute a separate tranche of Commitments but an
increase thereof, and shall have the same terms as the outstanding Loans
including, without limitation, the Applicable Rate with respect to such New
Lender or Increasing Lender’s portion of the outstanding Loans which shall not
exceed the Applicable Rate in effect as of the Effective Date;


 


61
















 


(vi)          no New Lender or
Increasing Lender shall receive any additional fees or compensation directly or
indirectly from Holdings, the Borrower or any Restricted Subsidiary for such
Lender’s new Commitment or the increased portion thereof, as applicable, other
than upfront fees no greater than those paid to the initial Lenders on a
comparable basis; and


 


(vii)         the Borrower may
elect to increase the aggregate amount of the Commitments pursuant to this Section 2.19
no more than twice.


 


On the effective date of any
increase in the aggregate amount of the Commitments pursuant to this Section 2.19,
(i) each New Lender shall pay to the Agent an amount equal to its pro rata
share of the aggregate outstanding Loans and (ii) any Increasing Lender
shall pay to the Administrative Agent an amount equal to the increase in its
pro rata share of the aggregate outstanding Loans, in each case such payments
shall be for the account of each other Lender. 
Upon receipt of such amount by the Administrative Agent, (i) each
other Lender shall be deemed to have ratably assigned that portion of its
outstanding Loans that is being reduced to the New Lenders and the Increasing
Lenders in accordance with such Lender’s new Commitment or the increased
portion thereof as applicable, and (ii) the Administrative Agent shall
promptly distribute to each other Lender its ratable share of the amounts
received by the Administrative Agent pursuant to this paragraph.


 


Section 2.20.  Defaulting Lenders.  (a) If any Letters of Credit
are outstanding at the time a Lender becomes a Defaulting Lender, and the
Commitments have not been terminated in accordance with Article 7, then:


 


(i)            so long as no
Default has occurred and is continuing, all or any part of the aggregate amount
available to be drawn under all outstanding Letters of Credit shall be
reallocated among the Lenders that are not Defaulting Lenders (“non-Defaulting Lenders”) in accordance with their Applicable
Percentage (disregarding any Defaulting Lender’s Commitment) but only to the
extent that the sum of (A) the aggregate principal amount of all Loans
made by such non-Defaulting Lenders (in their capacity as Lenders) and
outstanding at such time, plus (B) such non-Defaulting Lenders’ Applicable
Percentage (before giving effect to the reallocation contemplated herein) of
the aggregate amount available to be drawn under all outstanding Letters of
Credit, plus (C) the aggregate principal amount of all Loans made by each
Issuing Bank pursuant to Section 2.02 that have not been ratably funded by
such non-Defaulting Lenders and outstanding at such time, plus (D) such
Defaulting Lender’s Applicable Percentage of the aggregate amount available to
be drawn under such Letters of Credit, does not exceed the total of all
non-Defaulting Lenders’ Commitments.


 


(ii)           if the reallocation
described in clause (i) above cannot, or can only partially, be
effected, the Borrower shall within one Business Day following notice by the
Administrative Agent, cash collateralize such Defaulting Lender’s Applicable
Percentage of the aggregate amount available to be drawn under such Letters of
Credit (after giving effect to any partial reallocation pursuant to 


 


62

















 


clause (i) above)
by paying cash collateral to the applicable Issuing Bank for so long as such
Letters of Credit are outstanding;


 


(iii)          if the Applicable
Percentage of Letters of Credit of the non-Defaulting Lenders are reallocated
pursuant to this Section 2.20, then the fees payable to the Lenders
pursuant to Section 2.11(b) shall be adjusted in accordance with such
non-Defaulting Lenders’ Applicable Percentage of Letters of Credit; or


 


(iv)          if any Defaulting
Lender’s Applicable Percentage of Letters of Credit is neither cash
collateralized nor reallocated pursuant to this Section 2.20, then,
without prejudice to any rights or remedies of any Issuing Bank or any Lender
or the Borrower hereunder, all letter of credit fees payable under Section 2.11(b) with
respect to such Defaulting Lender’s Applicable Percentage of Letters of Credit
shall be payable to the applicable Issuing Bank until such Lender’s Applicable
Percentage of Letters of Credit is cash collateralized and/or reallocated.


 


(b)           So long as any Lender is a Defaulting Lender, no Issuing
Bank shall be required to issue, amend or increase any Letter of Credit, unless
it is satisfied that the related exposure will be 100% covered by the
Commitments of the non-Defaulting Lenders and/or cash collateral will be
provided by the applicable Borrower in accordance with Section 2.20, and
participating interests in any such newly issued or increased Letter of Credit
shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(a)(i) (and
Defaulting Lenders shall not participate therein).


 


(c)           No Commitment of any Lender shall be increased or
otherwise affected, and, except as otherwise expressly provided in this Section 2.20,
performance by the Borrower of its obligations shall not be excused or
otherwise modified as a result of the operation of this Section 2.20.  The rights and remedies against a Defaulting
Lender under this Section 2.20 are in addition to any other rights and
remedies which the Borrower, the Administrative Agent, any Issuing Bank, or any
Lender may have against such Defaulting Lender.


 


ARTICLE
3

REPRESENTATIONS AND WARRANTIES


 


The Borrower represents and warrants to the Lender
Parties that:


 


Section 3.01.  Organization;
Powers.  Each Cloud Peak
Company is duly organized, validly existing and in good standing under the laws
of the jurisdiction of its organization, has all requisite power and authority
to carry on its business as now conducted and, except where failures to do so,
in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect, is qualified to do business in, and is in good standing in,
every jurisdiction where such qualification is required.


 


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Section 3.02.  Authorization;
Enforceability.  The Loan
Documents that have been or are to be entered into by the applicable Credit
Party are within its corporate or limited liability company powers and have
been duly authorized by all necessary corporate or limited liability company
action and, if required, stockholder or member action.  Each Loan Document to which the applicable
Credit Party is a party constitutes (or, in the case of any Loan Document
entered into after the date hereof, when executed and delivered by such Person,
will constitute) a legal, valid and binding obligation of such Credit Party, in
each case enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium and other laws affecting
creditors’ rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.


 


Section 3.03.  Governmental
Approvals; No Conflicts.  (a) The
entry into the Loan Documents and the performance of the Loan Financing
Transactions contemplated thereunder (a) do not require any consent or
approval of, registration or filing with, or other action by, any Governmental
Authority, except (i) such as have been obtained or made and are in full
force and effect in all material respects, (ii) filings, consents and
notices necessary to perfect or acknowledge, to the fullest extent possible,
the Transaction Liens and (iii) notices of the Transactions required under
the Mining Permits (including to the Bureau of Alcohol, Tobacco and Firearms)
and Environmental Permits regarding a change in control that will be given to
the applicable Governmental Authority on or prior to the date by which such
notices are due, (b) will not violate any charter, by-laws or
organizational documents of the Borrower or any of its Restricted Subsidiaries,
(c) will not violate any applicable law or regulation (including any
Environmental Law or Mining Law) or any order of any Governmental Authority
(including any Environmental Permit or Mining Permit), (d) will not
violate or result in a default under any indenture, lease (including any Mining
Lease), agreement or other instrument binding upon the Borrower or any of its
Restricted Subsidiaries or any of their respective properties, or give rise to
a right thereunder to require the Borrower or any of its Restricted
Subsidiaries to make any payment, except in each case referred to in clause (c) or
(d) to the extent that failure to do so would not reasonably be expected
to have a Material Adverse Effect and (e) will not result in the creation
or imposition of any Lien (other than the Transaction Liens) on any property of
the Borrower or any of its Restricted Subsidiaries.


 


Section 3.04.  Financial
Statements; No Material Adverse Change.  (a) The Borrower has heretofore
furnished to the Lenders (i) its consolidated balance sheet as of December 31,
2008 and the related consolidated statements of income, stockholders’ equity
and cash flows for the Fiscal Year then ended, reported on by Pricewaterhouse
Coopers LLP, Independent Registered Public Accounting Firm, and (ii) its
consolidated balance sheet as of September 30, 2009 and the related
consolidated statements of income, stockholders’ equity and cash flows for the
Fiscal Quarter then ended and for the portion of the Fiscal Year then ended,
all certified by its chief financial officer. 
Such financial statements present fairly, in all material respects, the
financial position of the Borrower and its consolidated Subsidiaries as of such
dates and their results of operations and cash flows for such periods in
accordance with GAAP, subject to normal year-end adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii) above.


 


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(b)           The Borrower has heretofore furnished to the Lenders its
pro forma consolidated balance sheet as of September 30, 2009, prepared
giving effect to the Transactions as if the Transactions had occurred on such
date.  Such pro forma consolidated
balance sheet (i) has been prepared in good faith based on the same
assumptions used to prepare the pro forma financial statements included in the
Information Memorandum (which assumptions are believed by the Borrower to be
reasonable), (ii) is based on the best information available to the
Borrower after due inquiry, (iii) accurately reflects all adjustments
necessary to give effect to the Transactions and (iv) presents fairly, in
all material respects, the pro forma financial position of the Borrower and its
consolidated Subsidiaries as of September 30, 2009 as if the Transactions
had occurred on such date.


 


(c)           After giving effect to the Transactions, neither the
Borrower nor any of its Subsidiaries has, as of the Effective Date, any
material contingent liabilities, unusual material long-term commitments or
unrealized losses, except as disclosed in the financial statements referred to
above or the notes thereto or in the Information Memorandum and except for the
Disclosed Matters.


 


(d)           Since September 30, 2009, there has been no Material
Adverse Effect.


 


Section 3.05.  Properties.
(a) Subject to the Liens expressly permitted by Section 6.02, the Borrower and each Restricted Subsidiary is the sole owner of, and has
good record title to, the Real Property described in Schedule 3.05(e) and
is the sole owner of and has good and valid title to, all other real and
personal property material to its business, including the real and personal
property described in Schedule 3.05(e), in each case except where the failure
to have such title or interest does not or would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.  The
Borrower and each Restricted Subsidiary owns and has maintained, in all
material respects and in accordance with normal coal mining industry practice,
all of the machinery, equipment, vehicles, preparation plants or other coal
processing facilities, loadouts and other transportation facilities and other
tangible personal property now owned or leased by the Borrower and the
Restricted Subsidiaries that is necessary to conduct their business as it is
now conducted, except where the failure to do so in the aggregate does not or
would not reasonably be expected to have a Material Adverse Effect.  All
Real Property described in Schedule 3.05(e) and all other properties and
assets comprising the Collateral are free and clear of Liens, other than Liens
expressly permitted by Section 6.02.


 


(b)           The Borrower and each Restricted Subsidiary has complied
with all obligations under all leases (including Mining Leases) to which it is
a party, except where the failure to comply does not or would not have a
Material Adverse Effect, and all such leases are in full force and effect,
except leases in respect of which the failure to be in full force and effect
does not or would not reasonably be expected to have a Material Adverse
Effect.  Subject to the Liens expressly
permitted by Section 6.02, the Borrower and each Restricted Subsidiary
enjoys peaceful and undisturbed possession under all such Mining Leases, other
than leases in respect of which the failure to enjoy peaceful and undisturbed
possession would not reasonably be expected to have, in the aggregate, a
Material Adverse Effect.


 


65

















 


(c)           Except as set forth on Schedule 3.05(c), and except for
such claims that do not and would not reasonably be expected to cause a
Material Adverse Effect, neither the Borrower nor any of the Restricted
Subsidiaries has received written or, to the knowledge of the Borrower and the
Restricted Subsidiaries, other notice of material claims, which are still
outstanding or unresolved, that the Borrower or any Restricted Subsidiary has
mined any coal that it did not have the right to mine or mined any coal in such
a manner as to give rise to any material claims for loss, waste or trespass,
and, to the knowledge of the Borrower and each Restricted Subsidiary, no facts
exist upon which such a claim could be based.


 


(d)           The Borrower and each of its Restricted Subsidiaries owns,
or is licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property necessary for use in its business, except as set forth in
the Acquisition Agreements relating to the discontinuance of the use of certain
predecessor trademarks and tradenames, and to the knowledge of the Borrower,
the use thereof by the Borrower and its Restricted Subsidiaries does not
infringe upon the rights of any other Person, except for infringements that, in
the aggregate, do not and would not reasonably be expected to result in a
Material Adverse Effect.


 


(e)           Schedule 3.05(e) sets forth a brief description of
each material Mining Lease (including coal leases and surface rights), each
material Improvement, each material Mining Permit and each other material item
of Collateral owned or controlled by the Borrower or any Restricted Subsidiary
as of the Effective Date and the nature of the Borrower’s or each of its
Restricted Subsidiaries’ interest therein, after giving effect to the
Transactions in each case that is material to the Coal Business.


 


(f)            Except as disclosed in Schedule 3.06 or by Holdings in
its Registration Statement on Form S-1, there are no developments
affecting any of the Mortgaged Property pending or, to the knowledge of any
Credit Party threatened, which might materially detract from the value,
materially interfere with any present or intended use or materially adversely
affect the marketability of such Mortgaged Property, other than any such
developments that do not and would not, in the aggregate, reasonably be
expected to result in a Material Adverse Effect.


 


(g)           None of the Borrower and their Restricted Subsidiaries is
obligated under any right of first refusal, option or other contractual right
to sell, assign or otherwise dispose of any Mortgaged Property or any interest
therein, except for Liens permitted under Section 6.02 or Section 6.05.


 


(h)           With respect to each Mortgaged Property on which
significant surface Improvements are located, subject to the Liens expressly
permitted by Section 6.02, there are no rights or claims of parties in
possession, encroachments, overlaps, boundary line disputes or other matters
which would be disclosed by an accurate survey or inspection of the premises
except as do not and would not reasonably be expected to have, in the
aggregate, a Material Adverse Effect.


 


(i)            As of the Effective Date, each of the Borrower and its
Restricted Subsidiaries has proven or probable reserves of coal in place on
Mining Leases for which


 


66

















 


the Borrower and its Restricted Subsidiaries have all
Mining Permits, surface use agreements and other ancillary rights, in each
case, necessary for the operation of such leases as a Mine at levels consistent
with the most recent mining plan provided to the Lenders prior to the Effective
Date.


 


Section 3.06.  Litigation
and Environmental Matters.  (a) Except
as set forth in the Disclosed Matters or, with respect to Section 3.06(i) only,
as disclosed by Holdings in its Registration Statement on Form S-1:


 


(i)            There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any Restricted Subsidiary as to which
there is a reasonable likelihood of adverse determinations that, in the
aggregate, would reasonably be expected to result in a Material Adverse Effect.


 


(ii)           Neither the
Borrower nor any Restricted Subsidiary has been notified in writing, or, to the
knowledge of the Borrower and each Restricted Subsidiary, otherwise notified,
by the Federal Office of Surface Mining or the agency of any state
administering the Surface Mining Control and Reclamation Act of 1977, as
amended, or any comparable state statute that it is: (i) ineligible to
receive additional surface mining permits; or (ii) under investigation to
determine whether their eligibility to receive any Mining Permit should be
revoked, i.e., “permit blocked”; in each case, except as would not reasonably
be expected to have a Material Adverse Effect. 
To the knowledge of the Borrower, no facts exist that presently or upon
the giving of notice or the lapse of time or otherwise would render the
Borrower or any Restricted Subsidiary ineligible to receive surface mining
permits.


 


(b)           Except for noncompliance, Environmental Liability or
claims that do not and would not reasonably be expected to result in a Material
Adverse Effect, neither the Borrower nor any Restricted Subsidiary nor any
Guarantor and no Real Property now or previously owned, leased or operated by
any such entity (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any Environmental Permit, (ii) is subject
to any Environmental Liability (other than Environmental Liabilities for
reclamation obligations for which adequate reserves have been made on the
financial statements of the Borrower and its Subsidiaries in accordance with
GAAP or for which no reserves are so required), or (iii) has received
written notice of any claim with respect to any Environmental Liability.


 


(c)           Since the date of this Agreement, there has been no change
in the status of the Disclosed Matters that, individually or in the aggregate,
has resulted in a Material Adverse Effect.


 


Section 3.07.  Compliance
with Laws and Agreements.  The
Borrower and each Restricted Subsidiary is in compliance with all applicable
laws, regulations and orders (including any zoning, ordinance, code or
approval, Mining Law, or Mining Permit), excluding any Environmental Law (it
being understood that Environmental Law is 


 


67

















 


covered in Section 3.06),
of any Governmental Authority, in each case applicable to it or its property,
and all indentures, agreements and other instruments binding on it or its
property, except where failures to do so, in the aggregate, do not and would
not reasonably be expected to result in a Material Adverse Effect.


 


Section 3.08.  Investment
Company Status; Regulatory Restrictions on Borrowing.  Neither the Borrower nor any Restricted
Subsidiary is an “investment company” as defined in, or subject to regulation
under, the Investment Company Act of 1940. 
Neither the Borrower nor any Restricted Subsidiary is subject to
regulation under any law, treaty, rule or regulation or determination of
an arbitrator or court or other Governmental Authority (other than Regulations
G, U and X of the Federal Reserve Board) which limits its ability to incur any
Debt under this Agreement or any promissory note.


 


Section 3.09.  Taxes.  The Borrower and each Subsidiary has timely
filed or caused to be filed all Tax returns and reports required to have been
filed by it on or prior to the time when the same have become due and has paid
or caused to be paid on or prior to the time when the same have become due, all
Taxes required to have been paid by it, except (a) any Taxes that are
being contested in good faith by appropriate proceedings and for which the
Borrower or relevant Subsidiary has set aside on its books adequate reserves
with respect thereto in accordance with GAAP, or (b) to the extent that
failures to do so, in the aggregate, do not and would not reasonably be
expected to result in a Material Adverse Effect.


 


Section 3.10.  ERISA.  (a) No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other ERISA
Events for which liability is reasonably expected to occur, would reasonably be
expected to result in a Material Adverse Effect.  There exists no Unfunded Pension Liability
with respect to any Plan that would reasonably be expected to result in a
Material Adverse Effect.


 


(b) From
and after the date on which the Borrower and its Restricted Subsidiaries have
or are liable with respect to any Foreign Pension Plan (in each case in this
clause (b)):  Each such Foreign Pension
Plan is in compliance in all respects with all requirements of law applicable
thereto and the respective requirements of the governing documents for such
plan except where the failure to comply would not reasonably be expected to
have a Material Adverse Effect.  With
respect to each Foreign Pension Plan, none of the Borrower, its Restricted
Subsidiaries or to the knowledge of the Borrower, any of its respective
directors, officers, employees or agents has engaged in a transaction that
would subject the Borrower or any Subsidiary, directly or indirectly, to a tax
or civil penalty that would reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect.  With respect to each Foreign Pension Plan,
reserves have been established in the financial statements furnished to the
Lender in respect of any material unfunded liabilities in accordance with
applicable law or, where required, in accordance with ordinary accounting
practices in the jurisdiction in which such Foreign Pension Plan is maintained.  The aggregate unfunded liabilities with
respect to such Foreign Pension Plans would not reasonably be expected to
result in a Material Adverse Effect.


 


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Section 3.11.  Disclosure.  Except as disclosed by Holdings in its
Registration Statement on Form S-1 or otherwise pursuant to the Loan
Documents, as of the Effective Date the Borrower has disclosed to the Lenders
all agreements, instruments and corporate or other restrictions to which the
Borrower or any Subsidiary is subject that are known to Borrower, and all other
matters known to any of them, that, in the aggregate, would reasonably be
expected to result in a Material Adverse Effect.  Neither the Information Memorandum nor any of
the other written reports, financial statements, certificates or other
information furnished by or on behalf of any Credit Party to the Administrative
Agent or any Lender in connection with the negotiation of this Agreement or any
other Loan Document or delivered hereunder or thereunder (as modified or
supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, when made and in the light of the circumstances under which
they were made, not materially misleading; provided
that, with respect to projected financial information, the Borrower represents
only that such information was prepared in good faith based on assumptions
believed to be reasonable at the time.


 


Section 3.12.  Subsidiaries.  Schedule 3.12 sets forth the name of, and the
ownership interest of the Borrower in, each of its Subsidiaries and identifies
each Subsidiary that is a Guarantor, in each case as of the Effective Date.  All of the Borrower’s Restricted Subsidiaries
are, and will at all times be, fully consolidated in its consolidated financial
statements.


 


Section 3.13.  Insurance.  Schedule 3.13 sets forth a description of all
insurance maintained by or on behalf of Holdings, the Borrower and its Subsidiaries
as of the Effective Date.  As of the
Effective Date, all premiums in respect of such insurance required to be paid
have been paid.  The Borrower believes
that the insurance maintained by or on behalf of the Borrower and its
Subsidiaries is adequate.  No Mortgage
encumbers improved Real Property that is located in an area that has been
identified by the Secretary of Housing and Urban Development as an area having
special flood hazards within the meaning of the National Flood Insurance Act of
1968 unless flood insurance available under such Act has been obtained in
accordance with Section 5.08(c).


 


Section 3.14.  Labor
Matters.  As of the Effective
Date, except as otherwise disclosed by Holdings in its Registration Statement
on Form S-1, there are no strikes, lockouts or slowdowns against the
Borrower or any Restricted Subsidiary pending or, to the knowledge of the
Borrower, threatened.  The hours worked
by and payments made to employees of the Borrower and each Restricted
Subsidiary have not violated the Fair Labor Standards Act or any other
applicable Federal, state, local or foreign law dealing with such matters.  All payments due from the Borrower or any
Restricted Subsidiary, or for which any claim may be made against the Borrower
or any Restricted Subsidiary, on account of wages and employee health and
welfare insurance and other benefits, have been paid or accrued as a liability
on the books of the Borrower or such Restricted Subsidiary, except where the
failure to make such payment would not reasonably be expected to cause a
Material Adverse Effect.  The
consummation of the Transactions will not give rise to any right of termination
or right of renegotiation on the part of any union under any collective bargaining
agreement by which the Borrower or any Restricted Subsidiary is bound.


 


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Section 3.15.  Solvency.  Immediately after the Transactions to occur
on the Effective Date are consummated and after giving effect to the
application of the proceeds of the Loan made on the Effective Date and the
reimbursement of the CPE Promissory Note issued to Parent in connection with
the Acquisition Agreement, the Credit Parties, on a consolidated basis, will be
Solvent.


 


Section 3.16.  Use of Proceeds.  The Borrower shall use the
proceeds of the Loans solely in accordance with Section 5.12.


 


ARTICLE
4

CONDITIONS


 


Section 4.01.  Effective
Date.  The obligations of the
Lenders to make Loans and of the Issuing Banks to issue Letters of Credit
hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 9.02):


 


(a)           The Administrative Agent shall have received from each
party hereto either (i) a counterpart of this Agreement signed on behalf
of such party or (ii) written evidence satisfactory to the Administrative
Agent (which may include telecopy transmission of a signed signature page) that
such party has signed a counterpart of this Agreement.


 


(b)           The Administrative Agent shall have received a Note for
the account of each Lender requesting a Note to be delivered in connection with
the Effective Date.


 


(c)           The Administrative Agent shall have received a reasonably
satisfactory written opinion (addressed to the Administrative Agent and the
Lenders and dated the Effective Date) of each of (i) Fried, Frank, Harris,
Shriver & Jacobsen LLP, special counsel for the Borrower,
substantially in the form of Exhibit B-1, (ii) Holland &
Hart LLP, special regulatory counsel to the Borrower, substantially in the form
of Exhibit B-2, (iii) Amy Stefonick, internal counsel to the
Borrower, and Kevin Baker, internal counsel to Parent, substantially in the
form of Exhibits B-3 and B-4, respectively, (iv) Parsons Behle &
Latimer, special regulatory counsel to the Administrative Agent, substantially
in the form of Exhibit B-5 and (v) local counsel in each jurisdiction
where a Mortgaged Property is located, and, in the case of each opinion
required by this subsection, covering such other matters relating to the Credit
Parties or the Loan Documents as the Required Lenders shall reasonably request.


 


(d)           The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel may
reasonably request relating to the organization, existence and good standing of
each Credit Party, the authorization of the Loan Documents and any other legal
matters relating to the Credit Parties, the Loan Documents, all in form and
substance reasonably satisfactory to the Administrative Agent and its counsel.


 


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(e)           The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the President, a Vice
President or a Financial Officer of the Borrower, confirming compliance with
the conditions set forth in clauses (b) and (c) of Section 4.02.


 


(f)            The Credit Parties shall have paid, or have caused to be
paid, all invoiced fees and other amounts due and payable to the Lender Parties
on or before the Effective Date, including, to the extent invoiced, all
out-of-pocket expenses (including fees, charges and disbursements of counsel)
required to be reimbursed or paid by any Credit Party under the Loan Documents.


 


(g)           Evidence that the Collateral and Guarantee Requirement
shall have been satisfied and the Administrative Agent shall have received a
completed Perfection Certificate dated the Effective Date and signed by a
Financial Officer or other executive officer of the Borrower, together with all
attachments contemplated thereby, including the results of a search of the
Uniform Commercial Code (or equivalent) filings made with respect to the Credit
Parties in the jurisdictions contemplated by the Perfection Certificate and
copies of the financing statements (or similar documents) disclosed by such
search and evidence reasonably satisfactory to the Administrative Agent that
the Liens indicated by such financing statements (or similar documents) are
permitted by Section 6.02 or have been released.


 


(h)           The Administrative Agent shall have received evidence that
all insurance required by Section 5.08 is in effect.


 


(i)            Prior to or substantially simultaneously with the initial
Credit Event, the acquisition of Equity Interests in the Borrower by Holdings
shall be consummated in accordance with the terms of the Acquisition Agreement
and no provision thereof shall have been amended or waived in any material
respect that is adverse to the interests of the Lenders without the prior
written consent of the Administrative Agent.


 


(j)            Each of the IPO and the offering of the Senior Notes
shall be consummated simultaneously with the occurrence of the Effective Date,
resulting in combined aggregate gross cash proceeds of at least $900,000,000.


 


(k)           The Administrative Agent shall have received copies of the
Transaction Documents and all certificates, opinions and other documents
delivered thereunder (without material amendment, modification or waiver
thereof which is adverse to the Lenders (as reasonably determined by the
Administrative Agent)).


 


(l)            The Lenders shall have received a pro forma consolidated
balance sheet of the Borrower as of September 30, 2009, reflecting all pro
forma adjustments as if the Transactions had been consummated on such date, and
such pro forma consolidated balance sheet shall be consistent in all material
respects with the forecasts and other information previously provided to the
Lenders.


 


(m)          The Administrative Agent shall have received an opinion
from Duff & Phelps LLC, in form and substance and with detailed
support for the conclusions 


 


71

















 


expressed
therein, in each case reasonably satisfactory to the Administrative Agent, that
the Credit Parties are and, immediately after giving effect to the Transactions
on the Effective Date will be, Solvent.


 


(n)           The Administrative Agent shall have received, not later
than three Business Days prior to the Effective Date, all documentation and
other information with respect to the Borrower required by regulatory
authorities under applicable “know-your-customer” and anti-money laundering rules and
regulations, including without limitation the PATRIOT Act.


 


(o)           On and as of the Effective Date (and immediately after
giving effect to any Credit Event and other Transaction to occur on the
Effective Date and the application of all proceeds thereof as contemplated by
the Transaction Documents), (i) the representations and warranties of each
Credit Party set forth in the Loan Documents shall be true and correct and (ii) no
Default shall have occurred and be continuing.


 


Promptly after the Effective
Date occurs, the Administrative Agent shall notify the Borrower and the Lenders
thereof, and such notice shall be conclusive and binding.


 


Section 4.02.  Each
Credit Event.  The obligation
of each Lender to make a Loan on the occasion of any Borrowing, the obligation
of the Swingline Lender to make any Swingline Loan and the obligation of each
Issuing Bank to issue, amend, renew or extend any Letter of Credit (each such
event, a “Credit Event”), are each subject to the
following conditions:


 


(a)           The Administrative Agent (or, if applicable, the relevant
Issuing Bank or the Swingline Lender) shall have received a request with
respect to such Credit Event in accordance with the terms of this Agreement.


 


(b)           The representations and warranties of each Credit Party set
forth in the Loan Documents shall be true (or, in the case of any
representation and warranty that is not by its express terms limited by a
materiality or “Material Adverse Effect” exception or qualifier, true in all
material respects) on and as of the date of such Credit Event, provided that, to the extent that such representations and
warranties specifically refer to an earlier date, they shall be true and
correct in all material respects as of such date.


 


(c)           At the time of such Credit Event, no Default shall exist,
or would exist after giving effect to such Credit Event and the application of
the proceeds therefrom.


 


Each Borrowing, each
Swingline Loan and each issuance, amendment, renewal or extension of a Letter
of Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in clauses (b) and
(c) of this Section.


 


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ARTICLE
5

AFFIRMATIVE COVENANTS


 


Until all the Commitments have expired or terminated
and the principal of and interest on each Loan and all fees payable hereunder
have been paid in full and all Letters of Credit have expired or been cancelled
and all LC Disbursements have been reimbursed, the Borrower covenants and agrees
with the Lenders that:


 


Section 5.01.  Financial
Statements and Other Information. 
The Borrower will furnish to the Administrative Agent and each Lender:


 


(a)           within 90 days after the end of each Fiscal Year, its
audited consolidated balance sheet as of the end of such Fiscal Year and the
related statements of operations, stockholders’ equity and cash flows for such
Fiscal Year, setting forth in each case in comparative form the figures for the
previous Fiscal Year, all reported on by Pricewaterhouse Coopers LLP or other
independent registered public accounting firm of recognized national standing
(without a “going concern” or like qualification or exception and without any
qualification or exception as to the scope of such audit) as presenting fairly
in all material respects the financial position, results of operations and cash
flows of the Borrower and its consolidated Subsidiaries on a consolidated basis
in accordance with GAAP;


 


(b)           within 45 days after the end of each of the first three
Fiscal Quarters of each Fiscal Year, its consolidated balance sheet as of the
end of such Fiscal Quarter and the related statements of operations,
stockholders’ equity and cash flows for such Fiscal Quarter and for the then
elapsed portion of such Fiscal Year, setting forth in each case in comparative
form the figures for the corresponding period or periods of (or, in the case of
the balance sheet, as of the end of) the previous Fiscal Year, all certified by
a Financial Officer as presenting fairly in all material respects the financial
position, results of operations and cash flows of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP,
subject to normal year-end adjustments and the absence of footnotes;


 


(c)           concurrently with each delivery of financial statements
under clause (a) or (b) above, a certificate of a Financial Officer (i) certifying
as to whether a Default has occurred and is continuing and, if a Default has
occurred and is continuing, specifying the details thereof and any action taken
or proposed to be taken with respect thereto, (ii) setting forth
reasonably detailed calculations demonstrating compliance with Sections 6.11,
6.12 and 6.13 and (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the Borrower’s audited
financial statements referred to in Section 3.04 and, if any such change
has occurred, specifying the effect of such change on the financial statements
accompanying such certificate;


 


(d)           within 75 days after the beginning of each Fiscal Year, a
detailed consolidated budget for such Fiscal Year (including a projected
consolidated balance sheet and related statements of projected operations and
cash flows as of the end of and for such Fiscal Year and setting forth the
assumptions used in preparing such budget and


 


73

















 


an updated life of mine statistics for such Fiscal
Year) and, promptly when available, any significant revisions of such budget;


 


(e)           promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials filed
by Holdings or the Borrower 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 Holdings to its shareholders generally,
as the case may be; and


 


(f)            as soon as practicable following any request therefor,
such other information regarding the operations (including as to coal reserves),
business affairs and financial condition of the Borrower and its Subsidiaries
in such detail as is commercially reasonably available to the Borrower and its
Subsidiaries, or compliance with the terms of any Loan Document, as the
Administrative Agent or any Lender through the Administrative Agent may
reasonably request, in each case, solely with respect to the Administrative
Agent’s or Lender’s credit review of the Borrower and its Restricted
Subsidiaries in connection with the Loan Financing Transactions contemplated by
the Loan Documents.


 


Section 5.02.  Notice of
Material Events.  The Borrower
will furnish to the Administrative Agent and each Lender prompt written notice
of the following:


 


(a)           the occurrence of any Default;


 


(b)           the occurrence of a “default” or “event of default”
(however denominated) or any event requiring a mandatory offer to purchase or
right of redemption, under the Senior Notes;


 


(c)           the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority against or
affecting the Borrower or any Subsidiary or any Affiliate thereof that, if
adversely determined, would reasonably be expected to result in a Material
Adverse Effect;


 


(d)           the loss, delay, denial, termination or material and adverse
modification of the terms of any material lease from any Governmental Authority
or any material coal contract, with or without the consent of the Borrower or
any of its Affiliates that would reasonably be expected to result in a Material
Adverse Effect;


 


(e)           the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, would reasonably be expected to
result in liabilities of the Borrower and its Subsidiaries in an aggregate
amount exceeding $10,000,000; and


 


(f)            any other development that results in, or would
reasonably be expected to result in, a Material Adverse Effect.


 


Each notice delivered under
this Section shall be accompanied by a statement of a Financial Officer or
other executive officer of the Borrower setting forth the details of the


 


74

















 


event or development
requiring such notice and any action taken or proposed to be taken with respect
thereto.


 


Section 5.03.  Information
Regarding Collateral.  (a) The
Borrower will furnish to the Administrative Agent (for distribution to each
Lender by the Administrative Agent) prompt written notice of any change in (i) any
Credit Party’s corporate name or any trade name used to identify it in the
conduct of its business or any Credit Party’s chief executive office, its
principal place of business, or any office or facility at which Collateral
owned by it is located (including the establishment of any such new office or
facility), (ii) any Credit Party’s identity or corporate structure or (iii) any
Credit Party’s Federal Taxpayer Identification Number.  The Borrower will not effect or permit any
change referred to in the preceding sentence unless all filings have been made
under the Uniform Commercial Code and all other actions have been taken that
are required so that such change will not at any time adversely affect the
validity, perfection or priority of any Transaction Lien on any of the
Collateral.


 


(b)           Each year, at the time annual financial statements with
respect to the preceding Fiscal Year are delivered pursuant to Section 5.01(a),
the Borrower will deliver to the Administrative Agent (for distribution to each
Lender by the Administrative Agent) a certificate of a Financial Officer and
its chief legal officer setting forth the information required pursuant to Section 1
of the Perfection Certificate or confirming that there has been no material
change in such information since the date of the Perfection Certificate
delivered on the Effective Date or the date of the most recent certificate
delivered pursuant to this subsection.


 


Section 5.04.  Existence;
Conduct of Business.  The
Borrower and its Restricted Subsidiaries will do or cause to be done all things
reasonably necessary to preserve, renew and keep in full force and effect its (i) legal
existence and (ii) the rights, licenses, qualifications, permits,
privileges, franchises, patents, copyrights, trademarks and trade names
material to the conduct of its business, except where the failure to do so
would not reasonably be expected to result in a Material Adverse Effect; provided that the foregoing shall not
prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.03.


 


Section 5.05.  Payment of
Obligations.  The Borrower and
each Restricted Subsidiary will pay its Debt and other obligations, including
Tax liabilities, before the same shall become delinquent or in default, except
where (a) the validity or amount thereof is being contested in good faith
by appropriate proceedings, (b) the Borrower or relevant Restricted
Subsidiary has set aside on its books adequate reserves with respect thereto in
accordance with GAAP, (c) such contest effectively suspends collection of
the contested obligation and the enforcement of any Lien securing such
obligation and (d) the failure to make payment pending such contest would
not reasonably be expected to result in a Material Adverse Effect.


 


Section 5.06.  Maintenance of Real
Property.  The Borrower and
each Restricted Subsidiary will maintain in good standing all of the Mining
Leases and other agreements related to Real Property and will promptly perform
all material obligations thereunder, except where the failure to do so would
not reasonably be expected to result in a Material


 


75

















 


Adverse Effect, provided that nothing in the foregoing shall be deemed to
preclude termination of the Mining Lease upon expiration or termination of its
term after completion of mining.


 


Section 5.07.  Maintenance
of Personal Property.  The
Borrower and each Restricted Subsidiary will maintain all material personal
property necessary to the conduct of its business in good working order and
condition in accordance with the standards of a good operator in the open pit
coal mining business, ordinary wear and tear excepted and from time to time
make, or cause to be made, all needful and proper repairs, renewals, additions,
improvements and replacements thereto necessary in order that the business
carried on in connection therewith, if any, may be properly conducted at all
times, except where the failure to do so would not reasonably be expected to
result in a Material Adverse Effect.


 


Section 5.08.  Insurance.  (a) The Borrower and its Subsidiaries
will maintain with financially sound and reputable insurance companies selected
by the Borrower (which, for the avoidance of doubt, may include Three Crowns
Insurance, for so long as Parent owns Equity Interests of Borrower and for so
long as Three Crowns Insurance conducts its business through entities duly
licensed by the appropriate Government Authority in any state in which it is
required to do so  to conduct business as
an insurer or otherwise provides insurance coverage in a manner that is acceptable
in any jurisdiction in which such insurance is provided to the Borrower and its
Subsidiaries) that customarily write insurance for the risks covered thereby in
the amounts contemplated thereby in such amounts, including deductibles and
levels of self-insurance, and on material terms, in each case at least as
favorable on an aggregate basis to the Lenders as those in effect on the
Effective Date:


 


(i)            fire and extended
coverage insurance, on a replacement cost basis (except for drag lines which
are insured on the basis of 120% of declared value), with respect to all
personal property and Improvements, in such amounts as are customarily
maintained by companies in the same or similar business operating in the same
or similar locations;


 


(ii)           commercial general
liability insurance against claims for bodily injury, death or property damage
occurring upon, about or in connection with the use of any properties owned,
occupied or controlled by it, providing coverage on an occurrence basis in
accordance with good practice as compared to companies in the same or similar
business and including the broad form CGL endorsement;


 


(iii)          business
interruption insurance, insuring against loss of gross earnings for a period of
at least 12 months arising from any risks or occurrences required to be covered
by insurance pursuant to clause (i) above; and


 


(iv)          such other insurance
as may be required by law.


 


Deductibles or self-insured
retention shall not exceed $2,500,000 for fire and extended coverage policies,
$2,000,000 for commercial general liability policies, provided,



 


76

















 


however, that so long
as Borrower is insured under Three Crowns Insurance, the deductibles shall be
the deductibles that are in place prior to the Effective Date.


 


(b)           Fire and extended coverage policies (and any policies
required to be maintained pursuant to subsection (a) of this Section)
maintained with respect to any Collateral shall be endorsed or otherwise
amended to include (i) a non-contributing mortgagee clause (regarding
Improvements) and lenders’ loss payable clause (regarding personal property),
in each case in favor of the Administrative Agent and providing for losses
thereunder to be payable to the Administrative Agent or its designee as sole
loss payee, and (ii) such other provisions as the Administrative Agent may
reasonably require from time to time to protect the interests of the Secured
Parties.  Commercial general liability
policies shall be endorsed to name the Administrative Agent as an additional
insured.  Each such policy referred to in
this subsection also shall provide that it shall not be canceled, modified or
not renewed (i) by reason of nonpayment of premium except upon at least 10
days’ prior written notice thereof by the insurer to the Administrative Agent
(giving the Administrative Agent the right to cure defaults in the payment of
premiums) or (ii) for any other reason except upon at least 30 days’ prior
written notice thereof by the insurer to the Administrative Agent.  The Borrower shall deliver to the Administrative
Agent, prior to the cancellation, modification or nonrenewal of any such policy
of insurance, a copy of a renewal or replacement policy (or other evidence of
renewal of a policy previously delivered to the Administrative Agent) together
with evidence satisfactory to the Administrative Agent of payment of the
premium therefor.


 


(c)           With respect to each Mortgaged Property, the Borrower
shall obtain flood insurance in such total amount as the Administrative Agent
may from time to time require, if at any time the area in which any
improvements located on any Mortgaged Property is designated a “flood hazard
area” in any Flood Insurance Rate Map published by the Federal Emergency
Management Agency (or any successor agency), and otherwise comply with the National
Flood Insurance Program as set forth in the Flood Disaster Protection Act of
1973, as amended from time to time.


 


Section 5.09.  Casualty
and Condemnation.  The
Borrower will furnish to the Administrative Agent and the Lenders prompt
written notice of any loss or other insured damage to any material portion of
the Collateral (which, for the avoidance of doubt, shall not include the
conduct of mining operations in the ordinary course) or the commencement of any
action or proceeding for the taking of any Collateral or any part thereof or
interest therein under power of eminent domain or by condemnation or similar
proceeding, in each case to the extent that such action would reasonably be
expected to result in a Material Adverse Effect.


 


Section 5.10.  Proper
Records; Rights to Inspect and Appraise.  The Borrower and each Restricted Subsidiary
will keep proper books of record and account in which complete and correct
entries are made of all transactions relating to its business and activities in
accordance with GAAP.  The Borrower and
each Restricted Subsidiary will permit any representatives designated by the
Administrative Agent or the Required Lenders, upon reasonable prior notice, to
visit and inspect its properties, to examine and make extracts from its books
and records, and to discuss its affairs, finances and condition with its
officers and independent accountants, all at such reasonable times and


 


77

















 


as often as reasonably
requested; provided, however,
so long as no Event of Default has occurred and is continuing, such inspections
shall be limited to two (2) per year.


 


Section 5.11.  Compliance
with Laws.  The Borrower and
each Restricted Subsidiary will comply with all laws, rules, regulations and
orders of any Governmental Authority applicable to it or its property (owned or
leased) and all Environmental Laws, Mining Laws and all Environmental Permits
and Mining Permits, except where failures to do so, in the aggregate, do not
and would not reasonably be expected to result in a Material Adverse Effect.


 


Section 5.12.  Use of
Proceeds and Letters of Credit. 
The proceeds of the Loans will be used only for general corporate
purposes.  No part of the proceeds of any
Loan will be used, directly or indirectly, for any purpose that entails a
violation of any of the Regulations of the Federal Reserve Board, including
Regulations T, U and X.  Letters of
Credit will be requested and used only (i) to support payment obligations
of the Borrower and its Restricted Subsidiaries, including to collateralize
reclamation bonds, performance bonds, bid bonds, surety bonds and other similar
instruments, (ii) to make payments or to collateralize obligations to
Parent and its Affiliates pursuant to reimbursement obligations relating to
certain already existing letters of credit issued by Parent and/or its
Affiliates for the benefit of the Borrower, (iii) in support of certain
obligations under the Transaction Documents and (iv) for other general
corporate purposes.


 


Section 5.13.  Additional
Subsidiaries.  If any
additional Subsidiary (other than an Excluded Subsidiary) is formed or acquired
after the Effective Date, the Borrower will, within three Business Days after
such Subsidiary is formed or acquired, notify the Administrative Agent and the
Lenders thereof and, cause any Equity Interest in or Debt of such Subsidiary
owned by or on behalf of any Credit Party to be added to the Collateral to the
extent required by the Security Agreement. 
If such Subsidiary is or subsequently becomes a Wholly-Owned Restricted
Subsidiary and is not prohibited by applicable law or regulation from
guaranteeing the Borrower’s obligations hereunder, the Borrower shall promptly
cause the Collateral and Guarantee Requirement to be satisfied with respect to
such Subsidiary, whereupon such Subsidiary will become a “Guarantor” and “Grantor”
for purposes of the Loan Documents.


 


Section 5.14.  Further
Assurances.  (a) The
Credit Parties will execute and deliver any and all further documents,
financing statements, agreements and instruments, and take all such further
actions (including the filing and recording of financing statements, fixture
filings, mortgages, deeds of trust and other documents), that may be required
under any applicable law, or that the Administrative Agent or the Required
Lenders may reasonably request, to cause the Collateral and Guarantee
Requirement to be and remain satisfied, all at the Borrower’s expense.  The Borrower will provide to the
Administrative Agent, from time to time upon request, evidence reasonably
satisfactory to the Administrative Agent as to the perfection and priority of
the Transaction Liens created or intended to be created by the Security
Documents.


 


(b)           If any material assets (including any Real Property) are
acquired by the Borrower or any Guarantor after the Effective Date (other than
assets constituting Collateral that become subject to Transaction Liens upon
acquisition thereof), the 


 


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Borrower will notify the Administrative Agent and
the Lenders thereof, and, if requested by the Administrative Agent or the
Required Lenders, will cause such assets to be subjected to a Transaction Lien
securing the Secured Obligations and will take, or cause the relevant Guarantor
to take, such actions as shall be necessary or reasonably requested by the
Administrative Agent to grant and perfect (to the extent possible) or record
such Transaction Lien, including actions described in Section 5.14(a), all
at the Borrower’s expense, provided that
no Credit Party shall be required to take such actions under this clause (b) with
respect to any newly acquired assets that it would not have been required to
take under the Security Documents with respect to assets owned or held by
Credit Parties as of the Effective Date.


 


(c)           If at any time Holdings proposes to Guarantee the Senior
Notes of the Borrower or any of its Subsidiaries, the Borrower shall ensure
that Holdings shall, prior to or simultaneously with providing such Guarantee,
provide to the Administrative Agent a Guarantee of the Loans and all other
Secured Obligations all substantially on the terms of the Guarantee contained
in the Security Agreement, and take such other actions in connection therewith,
including actions described in Section 5.14(a), as the Administrative
Agent shall reasonably request, all at the Borrower’s expense.


 


Section 5.15. Preparation of Environmental Reports.  In addition to any other rights hereunder, not
more often than once per Permit Area established after the Effective Date
during the term of this Agreement (or more frequently during the continuance of
an Event of Default), at the reasonable request of the Administrative Agent,
the Borrower will provide to the Lenders within 90 days after such request, at
the expense of the Borrower, an environmental or mining site assessment or
audit report summarizing any material Environmental Liabilities for any of its
Real Properties described in such request, prepared by an environmental or
mining consulting firm reasonably acceptable to the Administrative Agent (or
for so long as no Event of Default has occurred and is continuing, an
internally prepared environmental report consistent with the Borrower’s
policies and procedures on environmental reports), in each case showing
compliance with, or the Borrower’s or applicable Subsidiary’s plan to achieve
compliance with, Environmental Laws subject to ordinary course normal practices
and procedures of the coal mining industry with respect to such Environmental
Liabilities or matters.


 


Section 5.16.  Maintenance of Ratings.  The Borrower will use commercially
reasonable efforts to maintain at all times a corporate credit rating from
S&P and a corporate family rating from Moody’s, in each case with respect
to the Borrower.


 


Section 5.17.  Operation of Mines.  The Borrower will, and shall cause
each of its Restricted Subsidiaries to, operate their mines in all material
respects in accordance with sound coal mining practices and Mining Laws and
Mining Permits, except where the failure to do so would not reasonably be
expected to result in a Material Adverse Effect.


 


Section 5.18.  Maintenance of Material
Contracts.  The Borrower will,
and will cause each of its Restricted Subsidiaries to, comply with the
provisions of and to maintain in full force and effect all material licenses,
material permits, and material coal purchase and supply contracts to which any
such Person is a party, except where the


 


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failure to so maintain in full
force and effect a material license, material permit or a material contract
would not be reasonably expected to result in a Material Adverse Effect.


 


Section 5.19.  Title Opinions. The
Credit Parties shall deliver to the Administrative Agent (for distribution to
each Lender by the Administrative Agent), within 120 days after the Effective
Date, with respect to any Mining Lease identified as being a “Federal or State
Mining Lease” in Schedule 5.19, a title opinion in a form reasonably
satisfactory to the Administrative Agent or the Required Lenders.


 


ARTICLE
6

NEGATIVE COVENANTS


 


Until all the Commitments have expired or terminated
and the principal of and interest on each Loan and all fees payable hereunder
have been paid in full and all Letters of Credit have expired or been cancelled
and all LC Disbursements have been reimbursed, the Borrower covenants and
agrees with the Lenders that:


 


Section 6.01.  Debt;
Certain Equity Securities. 
Neither the Borrower nor any Restricted Subsidiary will create, incur,
assume or permit to exist any Debt (including Acquired Debt), and no Restricted
Subsidiary shall issue any preferred stock, except:


 


(i)            Debt created under
the Loan Documents;


 


(ii)           the Senior Notes;


 


(iii)          Second Lien Senior
Secured Debt in an aggregate principal amount not to exceed, at the time
incurred, the greater of (x) $140,000,000 and (y) 12% of Consolidated
Net Tangible Assets determined at the date of the incurrence of such Second
Lien Senior Secured Debt, provided, that
no Default shall have occurred and be continuing or result therefrom, and provided further that after giving effect thereto, the
Borrower is in Pro Forma Compliance with the covenants contained in Section 6.11,
Section 6.12 and Section 6.13, calculated based on the relevant financial
statements delivered pursuant to Section 5.01, as though such incurrence
occurred at the beginning of the period covered thereby;


 


(iv)          Debt existing on the
date hereof and listed in Schedule 6.01 and extensions, renewals and
replacements of any such Debt that do not increase the outstanding principal
amount thereof or result in an earlier maturity date or decreased weighted
average life thereof;


 


(v)           Debt of the Borrower
or any Restricted Subsidiary to the Borrower or any Restricted Subsidiary and
Debt of any Subsidiary to the Borrower or any Restricted Subsidiary; provided that (x) Debt owed by any
Restricted Subsidiary that is not a Credit Party to the Borrower or any
Guarantor shall be subject to Section 6.04 and (y) Debt owed by a
Credit Party to any Restricted Subsidiary that is not a Credit Party shall be
subordinated to the


 


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Secured
Obligations on customary terms and conditions reasonably satisfactory to the
Administrative Agent;


 


(vi)          Guarantees by the
Borrower or any Restricted Subsidiary of Debt of the Borrower or any Restricted
Subsidiary and Guarantees by any Subsidiary of Debt of the Borrower or any
Restricted Subsidiary; provided
that Guarantees by the Borrower or any Guarantor of Debt of any Subsidiary that
is not a Credit Party shall be subject to Section 6.04;


 


(vii)         Guarantees by the Borrower 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
Holdings by any such person in an aggregate principal amount not to exceed
$2,500,000 at any one time outstanding;


 


(viii)        Debt of the Borrower
or any Restricted Subsidiary (A) in existence on the date any Person
becomes a Restricted Subsidiary as a result of an Acquisition or other
acquisition by the Borrower and its other Restricted Subsidiaries or (B) incurred
to finance the acquisition, construction or improvement of any assets,
including Capital Lease Obligations and any Debt assumed in connection with the
acquisition of any such assets or secured by a Lien on any such assets before
the acquisition thereof; and extensions, renewals and replacements of any such
Debt under this clause (viii) that do not increase the outstanding
principal amount thereof or result in an earlier maturity date or decreased
weighted average life thereof; provided
that the aggregate principal amount of Debt outstanding at any time and
permitted by this clause (viii) shall not exceed the greater of
$100,000,000 and 8% of Consolidated Net Tangible Assets determined at such
date;


 


(ix)           Debt in connection with Permitted Receivables
Financings,  provided that
the aggregate principal amount of all Receivables issued pursuant to such
Permitted Receivables Financings shall not exceed $100,000,000 at any time
outstanding;


 


(x)            Debt of Foreign
Subsidiaries engaged in Permitted Businesses for general corporate purposes in
an aggregate amount not to exceed $10,000,000 at any time outstanding;


 


(xi)           Debt related to the
financing of insurance policy premiums; provided that (A) such
insurance is for the benefit of the Borrower or its Restricted Subsidiaries and
(B) the aggregate principal amount of Debt permitted by this clause shall
not exceed $7,500,000 at any time outstanding;


 


(xii)          Debt under
trade-related letters of credit obtained in the ordinary course;


 


(xiii)         for so long as Holdings is paying certain
obligations on behalf of the Borrower and its Subsidiaries, Guarantees by the
Borrower or any Restricted


 


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Subsidiary of obligations relating to the
establishment of one or more commercial bank accounts of Holdings used to pay
obligations solely under the Acquisition Documents or otherwise of, or on
behalf of, the Borrower and its Subsidiaries or in connection with Holdings’
role as the managing member of the Borrower, in an aggregate amount not to
exceed $5,000,000 at any time outstanding;


 


(xiv)        Debt under any
Permitted Hedge Agreement; and


 


(xv)         other unsecured Debt
of any Credit Party (including unsecured Debt of any Person that becomes a
Credit Party after the date hereof); provided
that if the aggregate principal amount of such Debt (considered with any other
related Debt issued in connection with a particular transaction) shall exceed
$5,000,000, the Borrower shall be in Pro Forma Compliance with the covenants
contained in Sections 6.11, 6.12 and 6.13.


 


Section 6.02.  Liens.  Neither the Borrower nor any Restricted
Subsidiary will create or permit to exist any Lien on any property now owned or
hereafter acquired by it, or assign or sell accounts receivable or rights in
respect thereof, except:


 


(i)            Transaction Liens;


 


(ii)           Permitted Liens;


 


(iii)          Liens securing
Second Lien Senior Secured Debt permitted by Section 6.01(iii);


 


(iv)          any Lien on any
property of the Borrower or any Restricted Subsidiary existing on the date
hereof and listed in Schedule 6.02 and any modifications, replacements,
renewals or extensions thereof; provided
that the Lien does not (x) extend to any additional property or (y) secure
any additional obligations, in each case other than the initial property so
subject to such Lien and the Debt and other obligations originally so secured,
and any modifications, replacements, renewals, extensions or refinancings
thereof permitted hereunder;


 


(v)           Liens on assets
acquired, constructed or improved by the Borrower or any Restricted Subsidiary;
provided that (A) the Debt
secured by such Liens is permitted by Section 6.01(viii), and (B) such
Liens will not apply to any other property of the Borrower or any Restricted
Subsidiary, and any extension, renewal or replacements thereof;


 


(vi)          Liens on accounts
receivable and related property pursuant to any Permitted Receivables
Financing;


 


(vii)         any Lien granted in
favor of the Swingline Lender or any Issuing Bank pursuant to arrangements
designed to eliminate such Swingline Lender’s or Issuing Bank’s risk with
respect to any Defaulting Lender’s or Defaulting


 


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Lenders’
participation in Swingline Loans or Letters of Credit, respectively, as
contemplated by Section 2.20;


 


(viii)        Liens in favor of a
banking institution arising by operation of law or any contract, including in
support of guarantees permitted under Section 6.01(xiii), 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


 


(ix)           Liens not permitted
by the foregoing clauses of this Section 6.02 securing other obligations
in an aggregate amount outstanding or, if less in each case, on assets with an
aggregate fair market value (determined immediately prior to the incurrence of
such Lien), that together do not exceed the greater of $35,000,000 and 3.0% of
Consolidated Net Tangible Assets determined at such date.


 


Section 6.03.  Fundamental
Changes.  Neither the Borrower
nor any Restricted Subsidiary will merge into or consolidate with any other
Person, or liquidate or dissolve, or permit any other Person to merge into or
consolidate with it, except that, if at the time thereof and immediately after
giving effect thereto no Default shall have occurred and be continuing, (i) any
Subsidiary may merge into the Borrower in a transaction in which the Borrower
is the surviving corporation, (ii) any Restricted Subsidiary may merge
into any Subsidiary in a transaction in which the surviving entity is a
Restricted Subsidiary and (if any party to such merger is a Guarantor) is a
Guarantor and (iii) any Subsidiary (except a Guarantor) may liquidate or
dissolve if the Borrower determines in good faith that such liquidation or
dissolution is in the best interests of the Borrower and is not materially
disadvantageous to the Lenders; provided
that, if any such merger involves a Person that is not a wholly owned
Subsidiary immediately before such merger, such merger shall not be permitted
unless also permitted by Section 6.04. 
The Borrower shall not, and shall not permit any of its Restricted
Subsidiaries to, engage in any business other than Permitted Businesses, and at
all times the Borrower and its Restricted Subsidiaries, determined as a whole,
shall be principally engaged in Permitted Businesses.


 


Section 6.04.  Investments.  Neither the Borrower nor any Restricted
Subsidiary will purchase, hold or acquire (including pursuant to any merger
with any Person that was not a wholly-owned Restricted Subsidiary before such
merger) any Investment except:


 


(a)           Cash Equivalents;


 


(b)           Investments existing on the date hereof and listed on Schedule
6.04;


 


(c)           Investments in Credit Parties (including immediately after
giving effect to and as a result of such Investment);


 


(d)           Investments by the Borrower and its Restricted
Subsidiaries in Persons other than Credit Parties; provided that:


 


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(i)            unless the Investment
Grade Date has occurred, the aggregate amount of Investments by the Borrower
and its Restricted Subsidiaries under this clause (d) shall not at any
time exceed the sum of (x) the greater of (A) $100,000,000 and (B) 8%
of Consolidated Net Tangible Assets determined at such date plus (y) if positive, the Available Net Income Basket
Amount plus (z) if positive, the Available
Equity Basket Amount; and


 


(ii)           if such Investment
comprises an Acquisition:


 


(A)  immediately before and immediately after giving Pro Forma
Effect to any such Acquisition, no Event of Default shall have occurred and be
continuing;


 


(B)  any Person or other property acquired in such Acquisition is
in a Permitted Business; and


 


(C)  unless the aggregate principal amount of Debt incurred by the
Borrower and its Restricted Subsidiaries in connection with such Acquisition
(including without limitation Acquired Debt) is less than $5,000,000,
immediately after giving effect to such Acquisition, the Borrower shall be in
Pro Forma Compliance with Section 6.11, Section 6.12 and Section 6.13,
determined on the basis of the financial information most recently delivered to
the Administrative Agent and the Lenders pursuant to Section 5.01(a) or
Section 5.01(b) as though such Acquisition had been consummated as of
the first day of the fiscal period covered thereby (and such compliance shall
be evidenced by a certificate from a Financial Officer of the Borrower
demonstrating such compliance calculation in reasonable detail).


 


(e)           Investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;


 


(f)            Investments made pursuant to surety bonds, reclamation
bonds, performance bonds, bid bonds, appeal bonds and similar obligations, in
each case, to the extent such surety bonds, reclamation bonds, performance
bonds, bid bonds, appeal bonds and similar obligations are permitted under this
Agreement;


 


(g)           Investments in the Equity Interests of Holdings in
connection with certain purchases or redemptions of Equity Interests held by
officers, directors and employees or any Plan in an aggregate amount not to
exceed to $5,000,000 per annum when combined with any purchases or redemptions
of Equity Interests of the Borrower permitted by Section 6.07(b);


 


(h)           loans and advances to current or former officers,
managers, directors, employees or consultants of Holdings, the Borrower or any
Restricted Subsidiary in an aggregate amount not to exceed $2,000,000 at any
time outstanding;


 


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(i)            Investments arising as a result of Permitted Receivables
Financings;


 


(j)            Hedging Agreements permitted by Section 6.06;


 


(k)           Production Payments, royalties, dedication of reserves
under supply agreements or similar rights or interests granted, taken subject
to, or otherwise imposed on properties with normal practices in the mining
industry;


 


(l)            Investments resulting from pledges
and deposits permitted under the definition of “Permitted Liens”;


 


(m)          Investments in an escrow account
required by the Master Separation Agreement provided to support indemnity and
other payment obligations with respect to surety bonds, letters of credit and
reclamation obligations existing prior to the Effective Date, by Holdings, the
Borrower and its Subsidiaries to RTA and its Affiliates under the Acquisition
Documents;


 


(n)           additional Investments necessary for the conduct of the
Borrower’s business in the ordinary course for each of Decker, Wyoming Quality
Healthcare Coalition and Montana Royalty Company, Ltd., in an aggregate amount
not to exceed $10,000,000;


 


(o)           Investments consisting of indemnification obligations in
respect of performance bonds, bid bonds, appeal bonds, surety bonds,
reclamation bonds and completion guarantees and similar obligations in respect
of Specified Coal Agreements or under any Mining Law or Environmental Law or
with respect to workers’ compensation benefits, in each case entered into in
the ordinary course of 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); and


 


(p)           other Investments not permitted by the foregoing clauses
of this Section 6.04 in an aggregate amount not to exceed at the time made
the sum of (x) the greater of (i) $75,000,000 and (ii) 6% of
Consolidated Net Tangible Assets determined at such date, plus
(y) if positive, the Available Net Income Basket Amount plus (z) if positive, the Available Equity Basket
Amount.


 


Section 6.05.  Asset
Sales.  Neither the Borrower
nor any Restricted Subsidiary will sell, transfer, lease or otherwise dispose
of any property, including any Equity Interest owned by it, nor will any
Restricted Subsidiary issue any additional Equity Interest in such Restricted
Subsidiary, except:


 


(a)           sales of inventory, used, obsolete or surplus equipment or
reserves, dispositions related to the burn-off of mines and Cash Equivalents in
the ordinary course of business and dispositions of surface rights and
termination of Mining Leases after the completion of mining and reclamation,
and termination or abandonment of water rights no longer needed for mining;


 


85

















 


(b)           sales, transfers and other dispositions to the Borrower or
a Restricted Subsidiary; provided
that any such sales, transfers or dispositions involving a Subsidiary that is
not a Credit Party shall comply with Section 6.08;


 


(c)           licensing and cross-licensing arrangements involving any
technology or other intellectual property of the Borrower or any Restricted
Subsidiary in the ordinary course of business consistent with past practice; provided, however, that any such license or cross-license of
technology or other intellectual property shall be on a non-exclusive basis;


 


(d)           Dispositions of assets by virtue of an asset exchange or
swap with a third party in any transaction (x) with an aggregate fair
market value less than or equal to $12,500,000, (y) involving a
coal-for-coal swap or (z) consisting of a coal swap involving any Real
Property;


 


(e)           exchanges and relocation of easements for pipelines, oil
and gas infrastructure and similar arrangements in the ordinary course of
business;


 


(f)            Disposition of assets related to Jacobs Ranch or the sale
thereof required pursuant to the Master Separation Agreement and the Membership
Interest Purchase Agreement; and


 


(g)           Dispositions not permitted by the foregoing clauses of
this Section 6.05 with an aggregate fair market value not exceeding 5% of
Consolidated Net Tangible Assets (determined as of the date of the balance
sheet of the Borrower and its Restricted Subsidiaries most recently delivered
pursuant to Section 3.04(b) or Section 5.01, as applicable) in
any fiscal year, provided that any Disposition or
series of related Dispositions made pursuant to this clause (g) of assets
or property with an aggregate fair market value in excess of $7,500,000 shall
be made for fair value and for consideration comprising at least 80% cash and
Cash Equivalents, and provided further
that solely for purposes of the determination under the foregoing proviso, Cash
Equivalents shall be deemed to include Productive Assets.


 


Section 6.06.  Hedging
Agreements.  Neither the
Borrower nor any Subsidiary will enter into or be an obligor with respect to
any Hedging Agreement except Permitted Hedging Agreements.


 


Section 6.07.  Restricted
Payments.  Neither the
Borrower nor any Subsidiary will declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment except:


 


(a)           the Borrower may make Permitted Tax Distributions to
Holdings and other holders of Equity Interests in the Borrower;


 


(b)           the Borrower may make payments to Holdings (and other
holders of Equity Interests of the Borrower on a pro-rata basis) to fund
dividends on Holdings’ common stock in an annual amount per share (adjusted
appropriately to reflect subsequent stock splits, subdivisions and
reclassifications) equal to 1.5% of the per-share 


 


86

















 


price to the public in the IPO, provided
that no Default shall have occurred and be continuing as a result therefrom;


 


(c)           the Borrower may redeem, repurchase or otherwise acquire
or retire its Equity Interests from current or former officers, managers,
directors, employees or consultants (or their respective estates or immediate
family members) of Holdings or any Subsidiary in an aggregate amount not to
exceed $5,000,000 per annum when combined with any investments in the Equity
Interests of Holdings permitted by Section 6.04(g); provided
that no Default shall have occurred and be continuing as a result therefrom;


 


(d)           the Borrower may make Restricted Payments on or prior to
the Effective Date to consummate the Transactions;


 


(e)           the Borrower and each Restricted Subsidiary may declare
and make Restricted Payments payable solely in the Equity Interests (other than
Disqualified Equity Interests) of such Person;


 


(f)            the Borrower may make a one-time payment to Holdings or
Parent in the amount of a required working capital-based adjustment made in the
time period provided for in the Acquisition Documents;


 


(g)           each Restricted Subsidiary may make Restricted Payments
payable, on a pro rata basis or on a basis more favorable to the Borrower, to
all holders of any class of Equity Interests of such Restricted Subsidiary at
least 50% of which is held, directly or indirectly through other Restricted
Subsidiaries, by the Borrower;


 


(h)           the Borrower may make payments to Holdings and
other holders of Equity Interests in the Borrower (but only to the extent
necessary) to permit Holdings to make any required payments under the Tax
Receivable Agreement in an aggregate
amount, for all such Restricted Payments made pursuant to this clause (h) after
the Effective Date, not to exceed the sum of (x) $30,000,000 plus (y) 50% of the sum of  (A) if
positive, the Available Net Income Basket Amount plus (B) if
positive, the Available Equity Basket Amount; and


 


(i)            so long as no
Event of Default shall have occurred and be continuing immediately before or
after giving effect thereto, the Borrower may make other payments or
distributions not otherwise permitted under this Section 6.07 in an
aggregate amount, for all such Restricted Payments made pursuant to this clause
(i) after the Effective Date, not to exceed the sum of (x) $30,000,000
plus (y) 50% of the sum of  (A) if positive, the Available Net Income Basket
Amount plus (B) if positive, the Available
Equity Basket Amount.


 


Section 6.08.  Transactions
with Affiliates.  Neither the
Borrower nor any Restricted Subsidiary will sell, lease or otherwise transfer
any property to, or purchase, lease or otherwise acquire any property from, or
otherwise engage in any other transaction with, any of its Affiliates (other
than transactions in the ordinary course of business that are on terms and
conditions, taken as a whole, not less favorable to the Borrower or any
Restricted Subsidiary than could be obtained on an arm’s length basis


 


87

















 


from unrelated third
parties) if the aggregate value of such
transaction or series of related transactions with such Affiliate exceeds
$10,000,000, except:


 


(a)           transactions between or among the Borrower and the Guarantors
not involving any other Affiliate;


 


(b)           any Restricted Payment permitted by Section 6.07;


 


(c)           transactions arising under the Transaction Documents (as
such documents are in effect on the Effective Date, and as amended or modified
thereafter on terms that are not materially less favorable to the Borrower and
its Restricted Subsidiaries, taken as a whole, considered in the aggregate
taking into account all such substantially contemporaneous amendments and
modifications of the Transaction Documents);


 


(d)           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)           the payment of fees and indemnities to directors,
officers, consultants and employees of Holdings and the Restricted Subsidiaries
in the ordinary course of business;


 


(f)            transactions with any joint venture or similar
arrangements (including, without limitation, any cash management activities
relating thereto); provided, however that such arrangements are on terms no
less favorable to the Borrower and its Restricted Subsidiaries, on the one
hand, and the relevant joint venture partner and its Affiliates, on the other
hand, taking into account all related arrangements and transactions entered
into by the Borrower and its Restricted Subsidiaries, on the one hand, and the
relevant joint venture partner and its Affiliates, on the other hand;


 


(g)           the payment of fees and expenses relating to the
Transactions on the Effective Date; and


 


(h)           letter of credit reimbursement obligations in connection
with letter of credit arrangements historically provided by Parent and its
Affiliates on behalf of the Borrower in the ordinary course of business.


 


Section 6.09.  Restrictive
Agreements.  Neither the
Borrower nor any Restricted Subsidiary will, directly or indirectly, enter into
or permit to exist any agreement or other arrangement that prohibits, restricts
or imposes any condition on (a) the ability of any Credit Party to create
or permit to exist any Lien on any of its property or (b) the ability of
any Subsidiary to pay dividends or other distributions with respect to any
shares of its capital stock or to make or repay loans or advances to the
Borrower or any Restricted Subsidiary or to Guarantee Debt of the Borrower or
any Restricted Subsidiary; provided
that (i) the foregoing shall not apply to restrictions and conditions
imposed by law or by any Loan Document or the Transaction Document (as such
documents are in effect on the Effective Date, and as amended or modified
thereafter on terms that are not materially


 


88

















 


less favorable to the
Borrower and its Restricted Subsidiaries, taken as a whole, considered in the
aggregate taking into account all such substantially contemporaneous amendments
and modifications of the Transaction Documents), (ii) the foregoing shall
not apply to restrictions and conditions existing on the date hereof and
identified on Schedule 6.09 (but shall apply to any amendment or
modification expanding the scope of, or any extension or renewal of, any such
restriction or condition), (iii) the foregoing shall not apply to
customary restrictions and conditions contained in agreements relating to the
sale of a Restricted Subsidiary or an asset pending such sale, provided that such restrictions and
conditions apply only to the Restricted Subsidiary or such asset that is to be
sold and such sale is permitted hereunder, (iv) clause (a) of this Section shall
not apply to restrictions or conditions imposed by any agreement relating to
secured Debt permitted by this Agreement on property securing such Debt; and (v) clause
(a) of this Section shall not apply to customary provisions in leases
restricting the assignment thereof or any restrictions imposed pursuant to
Specified Coal Agreements or Mining Leases.


 


Section 6.10.  Amendment
of Material Documents. 
Neither the Borrower nor any Restricted Subsidiary will amend, modify or
waive any of its rights under (a) any document evidencing or governing, or
under which was issued, any Subordinated Debt or any Second Lien Senior Secured
Debt, in each case in a manner adverse to the interests of the Lenders
hereunder or (b) if such amendment, modification or waiver would
reasonably be expected to have a Material Adverse Effect, its certificate of
incorporation, by-laws or other organizational documents.


 


Section 6.11.  Net Cash  Interest Expense Coverage Ratio.  The Borrower will not permit the ratio of (a) EBITDA
to (b) Consolidated Net Cash Interest Expense, in each case for any period
of four consecutive Fiscal Quarters ending on any date during any period set
forth below and determined on a Pro Forma Basis, to be less than the ratio set
forth below opposite such period:


 


	
  Period

  	
   

  	
  Ratio

  	
   

  
	
  Effective Date through December 31, 2010

  	
   

  	
  2.50 to 1.0

  	
   

  
	
  January 1, 2011 through Maturity Date

  	
   

  	
  2.75 to 1.0

  	
   

  



 


Section 6.12.  Leverage
Ratio.  The Borrower will not
permit the Leverage Ratio at any time during any period set forth below (in
each case determined on a Pro Forma Basis) to exceed the ratio set forth
opposite such period:


 


	
  Period

  	
   

  	
  Ratio

  	
   

  
	
  Effective Date through December 31, 2010

  	
   

  	
  3.75 to 1.0

  	
   

  
	
  January 1, 2011 through Maturity Date

  	
   

  	
  3.50 to 1.0

  	
   

  



 


Section 6.13.  First Lien Senior Secured
Leverage Ratio.  The Borrower
will not permit the First Lien Senior Secured Leverage Ratio, in each case
determined on a Pro Forma Basis  to
exceed 1.50 to 1.0.


 


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ARTICLE 7

EVENTS OF DEFAULT


 


If any of the following
events (“Events of Default”) shall
occur:


 


(a)                                  the Borrower
shall fail to pay any principal of any Loan or any LC Disbursement
reimbursement obligation when the same shall become due, whether at the due
date thereof or at a date fixed for prepayment thereof or otherwise;


 


(b)                                  the Borrower
shall fail to pay when due any interest on any Loan or any fee or other amount
(except an amount referred to in clause (a) above) payable to any Lender
Party under any Loan Document, and such failure shall continue unremedied for a
period of three (3) Business Days;


 


(c)                                  any
representation, warranty or certification made or deemed made by or on behalf
of any Credit Party in or in connection with any Loan Document or any amendment
or modification thereof or waiver thereunder or in any report, certificate,
financial statement or other document furnished pursuant to any Loan Document
or any amendment or modification thereof or waiver thereunder, shall prove to
have been incorrect in any material respect when made or deemed made;


 


(d)                                 the Borrower
shall fail to observe or perform any covenant or agreement contained in Section 5.02,
5.04 (with respect to the existence of the Borrower) or 5.12 or in Article 6;


 


(e)                                  any Credit Party
shall fail to observe or perform any covenant or agreement contained in any
Loan Document (other than those specified in clause (a), (b) or (d) above),
and such failure shall continue unremedied for a period of 30 days after notice
thereof from the Administrative Agent to the Borrower (which notice will be
given at the request of any Lender);


 


(f)                                    the Borrower or
any Restricted Subsidiary shall fail to make a payment or payments (whether of
principal or interest) in respect of Material Debt when the same shall become
due (beyond the period of grace, if any, provided in the instrument or
agreement under which such Material Debt was created), whether at the due date
thereof, at a date fixed for prepayment or upon acceleration;


 


(g)                                 any event or
condition occurs that results in (i) Material Debt becoming due before its
final scheduled maturity or (ii) that enables or permits (with or without
the giving of notice, the lapse of time or both) the holder or holders of
Material Debt or any trustee or agent on its or their behalf to cause Material
Debt to become due, or to require the prepayment, repurchase, redemption or
defeasance thereof, before its scheduled maturity; provided that this clause shall not apply to secured Debt
that becomes due as a result of a voluntary sale or transfer of the property
securing such Debt;


 


(h)                                 an involuntary
proceeding shall be commenced or an involuntary petition shall be filed seeking
(i) liquidation, reorganization or other relief in respect of the Borrower
or any of its Restricted Subsidiaries or its debts, or of a substantial part of
its 


 


90

















 


assets, under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower or
any of its Restricted Subsidiaries or for a substantial part of its assets,
and, in any such case, such proceeding or petition shall continue undismissed
for 60 days or an order or decree approving or ordering any of the foregoing
shall be entered;


 


(i)                                     the Borrower or
any of its Restricted Subsidiaries shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other
relief under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect, (ii) consent to the institution
of, or fail to contest in a timely and appropriate manner, any proceeding or
petition described in clause (h) above, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or any of its Restricted Subsidiaries or for
a substantial part of its assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding, (v) make
a general assignment for the benefit of creditors or (vi) take any action
for the purpose of effecting any of the foregoing;


 


(j)                                     the Borrower or
any of its Restricted Subsidiaries shall become unable, admit in writing its
inability or fail generally to pay its debts as they become due;


 


(k)                                  one or more
judgments for the payment of money in an aggregate amount exceeding $50,000,000
shall be rendered against the Borrower or any of its Restricted Subsidiaries
and shall remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be legally taken
by a judgment creditor to attach or levy upon any asset of the Borrower or any
of its Restricted Subsidiaries to enforce any such judgment;


 


(l)                                     an ERISA Event
shall have occurred that, in the opinion of the Required Lenders, when taken
either alone or together with all other ERISA Events that have occurred, would
reasonably be expected to result in a Material Adverse Effect;


 


(m)                               any Lien
purported to be created under any Security Document shall cease to be, or shall
be asserted by any Credit Party not to be, a valid and perfected Lien on any
material portion of the Collateral to the extent provided, and with the
priority required by (but, (x) in the case of priority, only to the extent
that any prior Lien not contemplated or permitted under the Loan Documents is
material and (y) in any event, subject to Liens permitted by Section 6.02),
the applicable Security Document, except (i) as a result of a sale or
other disposition of the applicable Collateral in a transaction permitted under
the Loan Documents or (ii) as a result of the Administrative Agent’s
failure to maintain possession of any stock certificates, promissory notes or
other documents delivered to it under the Security Agreement;


 


(n)                                 a Change in
Control shall occur;


 


(o)                                 any Guarantor’s
Secured Guarantee shall at any time fail to constitute a valid and binding
agreement of such Guarantor or any party shall so assert in writing; or


 


91

















 


(p)                                 one or more
surety, reclamation or similar bonds securing obligations of the Borrower or
any Restricted Subsidiary of the Borrower (or any required guaranties thereof
or required letters of credit with respect thereto) with an aggregate face
amount of $50,000,000 or more shall be actually terminated, suspended or
revoked and not replaced within 30 days of such termination, suspension or
revocation; or


 


(q)                                 there shall
occur any material uninsured damage to or loss, theft or destruction of any of
the Collateral that has a Material Adverse Effect on the Lenders or any other
of the Borrower’s or any of its Restricted Subsidiaries’ assets are attached,
seized, levied upon or subjected to a writ or distress warrant; or such come
within the possession of any receiver, trustee, custodian or assignee for the
benefit of creditors and the same is not cured within thirty (30) days
thereafter.


 


then, and in every such
event (except an event with respect to the Borrower or any Restricted
Subsidiary described in clause (h) or (i) above), and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and at the request of the Required Lenders shall, by notice to the Borrower,
take either or both of the following actions, at the same or different times: (i) terminate
the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or
in part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are waived by the Borrower; and in
the case of any event with respect to the Borrower described in clause (h) or
(i) above, the Commitments shall automatically terminate and the principal
of the Loans then outstanding, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are waived by the Borrower.


 


ARTICLE 8

THE ADMINISTRATIVE AGENT


 


Section 8.01.  Appointment
and Authorization.  Each
Lender Party irrevocably appoints the Administrative Agent as its agent and
authorizes the Administrative Agent (i) to sign and deliver the Security
Documents and (ii) to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms of the Loan
Documents, together with such actions and powers as are reasonably incidental
thereto.


 


Section 8.02.  Rights and Powers as a
Lender.  A bank serving as the
Administrative Agent shall, in its capacity as a Lender, have the same rights
and powers as any other Lender and may exercise the same as though it were not
the Administrative Agent.  Such bank and
its Affiliates may accept deposits from, lend money to and 


 


92

















 


generally engage in any kind of business with
the Borrower or any of its Subsidiaries or Affiliates thereof as if it were not
the Administrative Agent.


 


Section 8.03.  Limited
Duties and Responsibilities. 
The Administrative Agent shall not have any duties or obligations except
those expressly set forth in the Loan Documents.  Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default has occurred
and is continuing, (b) the Administrative Agent shall not have any duty to
take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents
that the Administrative Agent is required in writing to exercise by the
Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.02) and (c) except
as expressly set forth in the Loan Documents, the Administrative Agent shall
not have any duty to disclose, and shall not be liable for any failure to
disclose, any information relating to the Borrower or any of its Restricted
Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity.  The Administrative Agent shall not be liable
for any 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 under the circumstances as provided in Section 9.02) or
in the absence of its own gross negligence or willful misconduct.  The Administrative Agent shall be deemed not
to have knowledge of any Default unless and until written notice thereof is
given to the Administrative Agent the Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or
in connection with any Loan Document, (ii) the contents of any
certificate, report or other document delivered thereunder or in connection
therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth in any Loan Document, (iv) the
validity, enforceability, effectiveness or genuineness of any Loan Document or
any other agreement, instrument or document or (v) the satisfaction of any
condition set forth in Article 4 or elsewhere in any Loan Document, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.


 


Section 8.04.  Authority
to Rely on Certain Writings, Statements and Advice.  The Administrative Agent shall be entitled to
rely on, and shall not incur any liability for relying on, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person.  The Administrative Agent also may rely on any
statement made to it orally or by telephone and believed by it to be made by
the proper Person, and shall not incur any liability for relying thereon.  The Administrative Agent may consult with
legal counsel (who may be counsel for the Borrower or its Restricted
Subsidiaries), independent accountants and other experts selected by it, and
shall not be liable for any action taken or not taken by it in accordance with
the advice of any such counsel, accountants or experts.


 


Section 8.05.  Sub-Agents
and Related Parties.  The
Administrative Agent may perform any and all its duties and exercise its rights
and powers by or through one or more sub-agents appointed by it.  The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective 


 


93

















 


Related Parties.  The exculpatory provisions of the preceding
Sections of this Article shall apply to any such sub-agent and to the
Related Parties of the Administrative Agent and any such sub-agent, and shall
apply to activities in connection with the syndication of the credit facilities
provided for herein as well as activities as Administrative Agent.


 


Section 8.06.
 Resignation;
Successor Administrative Agent. 
Subject to the appointment and acceptance of a successor Administrative
Agent as provided in this Section, the Administrative Agent may resign at any
time by notifying the Lenders, the Issuing Banks and the Borrower.  Upon any such resignation, the Required
Lenders shall have the right to appoint a successor that is a bank or trust
company organized under the laws of the United States or any State or district
thereof with an office in New York, New York, which has a combined capital
surplus of at least $200,000,000 (an “Eligible Successor Agent”),
with the consent of the Borrower (which consent shall not be unreasonably
withheld or delayed).  If no successor
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative Agent gives
notice of its resignation, then the retiring Administrative Agent may, on
behalf of the Lenders and the Issuing Banks, and after consultation with the Borrower,
appoint a successor Administrative Agent, which shall be an Eligible Successor
Agent.  Upon acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder.  The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed by the Borrower and such successor.  After the Administrative Agent’s resignation
hereunder, the provisions of this Article and Section 9.03 shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent. 
Notwithstanding anything to the contrary herein, the Required Lenders
shall be entitled to replace the Administrative Agent with an Eligible
Successor Agent with the consent of the Borrower (which consent shall not be
unreasonably withheld or delayed), and from and after such replacement, all references
herein to the Administrative Agent shall be references to such financial
institution.


 


Section 8.07.  Credit
Decisions by Lenders.  Each
Lender acknowledges that it has, independently and without reliance on 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 Agreement. 
Each Lender also acknowledges that it will, independently and without
reliance on the Administrative Agent or any other Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or
based on this Agreement, any other Loan Document or related agreement or any
document furnished hereunder or thereunder.


 


94

















 


ARTICLE 9

MISCELLANEOUS


 


Section 9.01.  Notices.  (a)  Except in the case of notices and
other communications expressly permitted to be given by telephone, 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
registered mail or sent by telecopy, as follows:


 


(i)                                    if to the
Borrower, to:


 


Cloud Peak Energy Resources LLC


8051 E. Maplewood Ave.


Building 4


Greenwood Village, CO 80111


Attention: Oscar Martinez, Treasury,


with a copy to:


Legal Department


505 S. Gillette Ave. (82716)


P.O. Box 3009


Gillette, WY 82717-3009


 


Telecopy No. 212.507.6680


 


with a copy (which shall not constitute
notice for any purpose under the Loan Documents) to:


 


Fried, Frank, Harris, Shriver &
Jacobson LLP


1001 Pennsylvania Avenue, NW


Washington, D.C. 20004-2505


Attention: Gus M. Atiyah


Tel: 
202-639-7000


Fax: 
202-639-7003


email: 
gus.atiyah@friedfrank.com


 


(ii)                                 if to the
Administrative Agent, to:


 


Morgan Stanley Senior Funding, Inc.


One Pierrepoint Plaza, 7th Floor


300 Cadman Plaza West


Brooklyn, New York 11201


Attention: 
MS Agency / Beejal Sakaria


Telecopy No. 212.507.6680


 


95

















 


(iii)                              if to the
Swingline Lender, to:


 


Morgan Stanley Senior Funding, Inc.


One Pierrepoint Plaza, 7th Floor


300 Cadman Plaza West


Brooklyn, New York 11201


Attention: 
MS Agency / Beejal Sakaria


Telecopy No. 212.507.6680


 


(iv)                              if to any Issuing Bank, to
it at its address (or telecopy number) set forth in its Administrative
Questionnaire;


 


(v)                                 if to any other Lender, to
it at its address (or telecopy number) set forth in its Administrative
Questionnaire.


 


(b)                                 Notices and
other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative
Agent; provided that the
foregoing shall not apply to notices pursuant to Article 2 unless
otherwise agreed by the Administrative Agent and the applicable Lender.  The Administrative Agent or the Borrower may,
in its 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.


 


(c)                                  Any party
hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the Administrative Agent and the
Borrower.  All notices and other
communications given to any party hereto in accordance with the provisions of
this Agreement will be deemed to have been given on the date of receipt.


 


Section 9.02.  Waivers;
Amendments.  (a) No failure
or delay by any Lender Party in exercising any right or power hereunder or
under any other Loan Document shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power.  The rights and remedies of the Lender Parties
under the Loan Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. 
No waiver of any provision of any Loan Document or consent to any
departure by any Credit Party therefrom shall in any event be effective unless
the same shall be permitted by subsection (b) of this Section, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given.  Without
limiting the generality of the foregoing, neither the making of a Loan nor the
issuance, amendment, renewal or extension of a Letter of Credit shall be
construed as a waiver of any Default, regardless of whether any Lender Party
had notice or knowledge of such Default at the time.


 


(b)                                 No Loan
Document or provision thereof may be waived, amended or modified except, in the
case of this Agreement, by an agreement or agreements in writing entered into
by the Borrower and the Required Lenders or, in the case of any other Loan
Document, by an agreement or agreements in writing entered into by the parties
thereto with the consent of the Required Lenders; provided that no such agreement shall:


 


96
















 


(i)                                     increase the Commitment of
any Lender (or reinstate any Commitment terminated pursuant to Article 7)
without its written consent;


 


(ii)                                  reduce the principal amount
of any Loan or LC Disbursement or reduce the rate of interest thereon, or
reduce any fee payable hereunder, without the written consent of each Lender
Party affected thereby;


 


(iii)                               postpone the maturity of any
Loan, or the required date of reimbursement of any LC Disbursement, or any date
for the payment of any interest or fee payable hereunder, or reduce the amount
of, waive or excuse any such payment, or postpone the scheduled date of
expiration of any Commitment, without the written consent of each Lender Party
affected thereby;


 


(iv)                              change 2.17(b) or 2.17(c) in
a manner that would alter the pro rata sharing of payments required thereby,
without the written consent of each Lender;


 


(v)                                 change any provision of this
Section or the percentage set forth in the definition of “Required Lenders”
or any other provision of any Loan Document specifying the number or percentage
of Lenders (or Lenders of any Class) required to take any action thereunder,
without the written consent of each Lender;


 


(vi)                              release any material
Guarantor from its Secured Guarantee (except as expressly provided in the Security
Agreement), or limit its liability in respect of its Secured Guarantee, without
the written consent of each Lender;


 


(vii)                           release all or substantially
all of the Collateral from the Transaction Liens, without the written consent
of each Lender; or


 


provided
further that no such agreement shall amend, modify or otherwise affect the
rights or duties of the Administrative Agent, the Issuing Banks or the
Swingline Lender without its prior written consent.


 


(c)                                  Notwithstanding
the foregoing, if the Required Lenders enter into or consent to any waiver,
amendment or modification pursuant to subsection (b) of this Section, no
consent of any other Lender will be required if, when such waiver, amendment or
modification becomes effective, (i) the Commitment of each Lender not
consenting thereto terminates and (ii) all amounts owing to it or accrued
for its account hereunder are paid in full.


 


Section 9.03.  Expenses;
Indemnity; Damage Waiver.  (a) The
Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by
the Administrative Agent and its Affiliates, including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent, in
connection with the syndication of the credit facilities provided for herein,
the preparation and administration of the Loan Documents and any amendments,
modifications or waivers of the provisions thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable 


 


97

















 


out-of-pocket expenses
incurred by any Issuing Bank in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment
thereunder and (iii) all out-of-pocket expenses incurred by any Lender Party
and any Agent Party including the fees, charges and disbursements of any
counsel for any Lender Party and any Agent Party, in connection with the
enforcement or protection of its rights in connection with the Loan Documents
(including its rights under this Section), the Letters of Credit or the Loans,
including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of the Letters of Credit or the Loans.


 


(b)                                 The Borrower
shall indemnify each of the Lender Parties and each Agent Party and their
respective Related Parties (each such Person being called an “Indemnitee”) against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of counsel for
any Indemnitee, incurred by or asserted against any Indemnitee arising out of,
in connection with, or as a result of (i) the execution or delivery of any
Loan Document or any other agreement or instrument contemplated hereby, the
performance by the parties to the Loan Documents of their respective
obligations thereunder or the consummation of the Transactions, (ii) any
Loan or Letter of Credit or the use of the proceeds therefrom (including any
refusal by any Issuing Bank 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), (iii) any actual
or alleged presence or release of Hazardous Material on or from any Mortgaged
Property or any other property currently or formerly owned or operated by the
Borrower or any Subsidiary, or any other Environmental Liability resulting from
the ownership or operation of the Mines or any other Real Property by, or relating
in any way to the Borrower or any Subsidiary or any Guarantor or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating
to any of the foregoing, whether based on contract, tort or any other theory
and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not be
available to any Indemnitee to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from such
Indemnitee’s gross negligence or willful misconduct.


 


(c)                                  To the extent
that the Borrower fails to pay any amount required to be paid by it to the
Administrative Agent, any Issuing Bank or the Swingline Lender under subsection
(a) or (b) of this Section, each Lender severally agrees to pay to
the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as
the case may be, such Lender’s pro rata share (determined as of the time that
the applicable unreimbursed expense or indemnity payment is sought) 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, such Issuing Bank or the Swingline Lender in its capacity
as such.  For purposes hereof, a Lender’s
“pro rata share” shall be
determined based on its share of the sum of the total Revolving Credit
Exposures and unused Commitments at the time (in each case, determined as if no
Lender were a Defaulting Lender).


 


(d)                                 To the extent
permitted by applicable law, the Borrower shall not assert, and hereby waives,
any claim against any Indemnitee, on any theory of liability, for 


 


98

















 


special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement or any
agreement or instrument contemplated hereby, the Transactions, any Loan or
Letter of Credit or the use of the proceeds thereof.


 


(e)                                  All amounts due
under this Section shall be payable within ten (10) days after
written demand therefor.


 


Section 9.04.  Successors
and Assigns.  (a) The
provisions of this Agreement shall be binding on and inure to the benefit of
the parties hereto and their respective successors and assigns permitted hereby
(including any Affiliate of an Issuing Bank that issues any Letter of Credit),
except that (i) the Borrower may not assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent of each
Lender (and any attempted assignment or transfer by the Borrower without such
consent shall be null and void) and (ii) no Lender may assign or otherwise
transfer its rights or obligations hereunder except in accordance with this
Section.  Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (except the
parties hereto, their respective successors and assigns permitted hereby
(including any Affiliate of an Issuing Bank that issues any Letter of Credit)
and, to the extent expressly provided herein, the Related Parties of the Lender
Parties) any legal or equitable right, remedy or claim under or by reason of
this Agreement.


 


(b)                                 Any Lender may
assign to one or more assignees all or a portion of its rights and obligations
under this Agreement (including all or a portion of any Commitment it has at
the time and any Loans at the time owing to it); provided that:


 


(i)                                     the Administrative
Agent must give prior written consent to any such assignment, other than an
assignment of any Commitment to an assignee that is a Lender with a Commitment
immediately prior to giving effect to such assignment (which consent shall not
be unreasonably withheld or delayed);


 


(ii)                                  the Borrower
must give prior written consent to any such assignment, other than any
assignment made during the Primary Syndication, or any assignment to a Lender,
a Lender affiliate, an Approved Fund or, if an Event of Default has occurred
and is continuing, any other assignee (which consent shall not be unreasonably
withheld or delayed);


 


(iii)                               the Issuing
Banks must give prior written consent to any such assignment (which consent
shall not be unreasonably withheld or delayed);


 


(iv)                              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;


 


(v)                                 unless each of
the Borrower and the Administrative Agent otherwise consent, the amount of the
Commitment or Loans of the assigning Lender subject to each such assignment
(determined as of the date on which the relevant Assignment is delivered to the
Administrative Agent) shall not be less 


 


99

















 


than $1,000,000; provided
that this (v) shall not apply to an assignment to a Lender or a Lender
Affiliate or an assignment of the entire remaining amount of the assigning
Lender’s Commitment or Loans;


 


(vi)                              the parties to
each assignment shall execute and deliver to the Administrative Agent an
Assignment; and


 


the assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent a completed
Administrative Questionnaire in which the assignee designates one or more
credit contacts to whom all syndicate-level information will be made available
and who may receive such information in accordance with the assignee’s
compliance procedures and applicable laws, including Federal and state
securities laws.


 


For the purposes of this Section 9.04(b),
the term “Approved Fund” has the following meaning:


 


“Approved
Fund” means any Person (other than a natural person) that is engaged
in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) Lender Affiliate or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.


 


Subject to acceptance and
recording thereof pursuant to subsection (d) of this Section, from and
after the effective date specified in each Assignment the assignee thereunder
shall be a party hereto and, to the extent of the interest assigned by such
Assignment, 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, be released from its obligations and not entitled
to its rights under this Agreement. 
Notwithstanding the foregoing, in the case of an Assignment 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 and subject to the obligations of Sections 2.14, 2.15, 2.16 and
9.03 with respect to facts and circumstances occurring prior to the effective
date of such Assignment.  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 subsection (e) of this Section.


 


(c)                    The Administrative Agent,
acting for this purpose as an agent of the Borrower, shall maintain at one of
its offices in New York City a copy of each Assignment delivered to it and a
register for the recordation of the names and addresses of the Lenders, their
respective Commitments and the principal amounts of the Loans and LC
Disbursements owing to each Lender pursuant to the terms hereof from time to
time (the “Register”).  The entries in the Register shall be
conclusive absent manifest error, and the parties hereto may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
for all purposes of this Agreement, notwithstanding notice to the
contrary.  The Register shall be
available for inspection by 


 


100

















 


any party hereto at any
reasonable time and from time to time upon reasonable prior notice.


 


(d)                   Upon its receipt of a duly
completed Assignment executed by an assigning Lender and an assignee, the
assignee’s completed Administrative Questionnaire (unless the assignee shall
already be a Lender hereunder), the processing and recordation fee referred to
in subsection (b) of this Section and any written consent to such
assignment required by subsection (b) of this Section, the Administrative
Agent shall promptly accept such Assignment and record the information
contained therein in the Register.  No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this subsection.


 


(e)                    Any Lender may, without the
consent of the Borrower or any other Lender Party, sell participations to one
or more banks or other entities (“Participants”)
in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Commitments and the Loans owing to
it); provided that (i) such
Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower and the other
Lender Parties 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 the Loan Documents and to approve any amendment,
modification or waiver of any provision of the Loan Documents; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in clauses (i), (ii), (iii), (vi) or
(vii) of the first proviso to Section 9.02(b) that affects such
Participant.  Subject to subsection (f) of
this Section, each Participant shall be subject to the obligations and entitled
to the benefits of Sections 2.14, 2.15 and 2.16 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to
subsection (b) of this Section.  To
the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 9.08 as though it were a Lender, provided that such Participant agrees to
be subject to Section 2.17(c) as though it were a Lender.


 


(f)                      A Participant
shall not be entitled to receive any greater payment under Section 2.14 or
2.16 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 Borrower’s prior written
consent.  For the avoidance of doubt, a
Participant shall not be entitled to the benefits of Section 2.16 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section 2.16(e) as
though it were a Lender.


 


(g)                   Any Lender may at any time
pledge or assign a security interest in all or any portion of its rights under
this Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank or any central bank,
and this Section shall not apply to any such pledge or assignment of a
security interest; provided that
no such pledge or assignment of a security interest shall 


 


101

















 


release a Lender from any of
its obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.


 


(h)                                 In the case of
a participation, the applicable Lender, acting solely for this purpose as a
non-fiduciary agent of the Borrower, shall maintain a register on which it
enters the name and address of each Participant and the amount of each
Participant’s interest in the Commitments and the principal amounts of the
Loans and LC Disbursements owing to such Lender (the “Participant
Register”). The entries in the Participant Register shall be
conclusive, and such Lender shall treat each Person whose name is recorded in
the Participant Register as the owner of such Loan or other obligation
hereunder for all purposes of this Agreement notwithstanding any notice to the
contrary. Any such Participant Register shall be available for inspection by
the Administrative Agent at any reasonable time and from time to time upon
reasonable prior notice); provided that
the applicable Lender shall have no obligation to show such Participant
Register to the Borrower.


 


Section 9.05.  Survival.  All covenants, agreements, representations
and warranties made by the Credit Parties in the Loan Documents and in
certificates or other instruments delivered in connection with or pursuant to
the Loan Documents shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of the Loan
Documents and the making of any Loans and issuance of any Letters of Credit,
regardless of any investigation made by any such other party or on its behalf
and notwithstanding that any Lender Party may have had notice or knowledge of
any Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as any
principal of or accrued interest on any Loan or any fee or other amount payable
hereunder is outstanding and unpaid or any Letter of Credit is outstanding or
any Commitment has not expired or terminated. 
The provisions of Sections 2.14, 2.15, 2.16 and 9.03 and Article 8
shall survive and remain in full force and effect regardless of the
consummation of the Transactions, the repayment of the Loans, the expiration or
termination of the Letters of Credit and the Commitments or the termination of
this Agreement or any provision hereof.


 


Section 9.06.  Counterparts;
Integration; Effectiveness. 
This Agreement may be executed in counterparts (and by different parties
hereto on different counterparts), each of which shall constitute an original, but
all of which when taken together shall constitute a single contract.  This Agreement, the other Loan Documents and
any separate letter agreements with respect to fees payable to the
Administrative 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.  Except as provided in Section 4.01, this
Agreement (i) will become effective when the Administrative Agent shall
have signed this Agreement and received counterparts hereof that, when taken
together, bear the signatures of each of the other parties hereto and (ii) thereafter
will be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. 
Delivery of an executed counterpart of a signature page of this
Agreement by telecopy or pdf by email will be effective as delivery of a
manually executed counterpart of this Agreement.


 


102

















 


Section 9.07.  Severability.  If any provision of any Loan
Document is invalid, illegal or unenforceable in any jurisdiction then, to the
fullest extent permitted by law, (i) such provision shall, as to such
jurisdiction, be ineffective to the extent (but only to the extent) of such
invalidity, illegality or unenforceability, (ii) the other provisions of
the Loan Documents shall remain in full force and effect in such jurisdiction
and shall be liberally construed in favor of the Lender Parties in order to
carry out the intentions of the parties thereto as nearly as may be possible
and (iii) the invalidity, illegality or unenforceability of any such
provision in any jurisdiction shall not affect the validity, legality or
enforceability of such provision in any other jurisdiction.


 


Section 9.08.  Right of
Set-off.  If an Event of
Default shall have occurred and be continuing, each Lender and each of its
Affiliates is authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final, but in no event any escrow
accounts) at any time held and other obligations at any time owing by such
Lender or Affiliate to or for the credit or the account of the Borrower against
any obligations of the Borrower now or hereafter existing hereunder and held by
such Lender, irrespective of whether or not such Lender shall have made any
demand hereunder and although such obligations may be unmatured.  The rights of each Lender under this Section are
in addition to other rights and remedies (including other rights of setoff)
that such Lender may have.


 


Section 9.09.  Governing
Law; Jurisdiction; Consent to Service of Process.  (a) This Agreement shall be construed in
accordance with and governed by the law of the State of New York.


 


(b)                                 The Borrower
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State of New York sitting
in New York County and of the United States District Court of the Southern
District of New York, and any relevant appellate court, in any action or
proceeding arising out of or relating to any Loan Document, or for recognition
or enforcement of any judgment, and each party hereto irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State court or, to the
extent permitted by law, in such Federal court. 
Each party hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.  Nothing in any Loan Document shall affect any
right that any Lender Party may otherwise have to bring any action or
proceeding relating to any Loan Document against any Credit Party or its
properties in the courts of any jurisdiction.


 


(c)                                  The Borrower
irrevocably and unconditionally waives, to the fullest extent it may legally
and effectively do so, any objection that it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to
any Loan Document in any court referred to in subsection (b) of this
Section.  Each party hereto irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of any such suit, action or proceeding in any such
court.


 


103

















 


(d)                                 Each party
hereto irrevocably consents to service of process in the manner provided for
notices in Section 9.01.  Nothing in
any Loan Document will affect the right of any party hereto to serve process in
any other manner permitted by law.


 


Section 9.10.  WAIVER OF
JURY TRIAL.  EACH PARTY HERETO
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 ANY LOAN DOCUMENT OR ANY TRANSACTION CONTEMPLATED THEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY 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.


 


Section 9.11.  Headings.  Article and Section headings and
the Table of Contents herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.


 


Section 9.12.  Confidentiality.  (a) Each Lender Party agrees to maintain
the confidentiality of the Information (as defined below), except that
Information may be disclosed (b) to its and its Affiliates’ directors,
officers, employees and agents, including accountants, legal counsel and other
advisors (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Information and instructed
to keep such Information confidential), (c) to the extent requested by any
regulatory authority, (d) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (e) to any other
party to this Agreement, (f) in connection with the exercise of any remedy
hereunder or any suit, action or proceeding relating to any Loan Document or
the enforcement of any right thereunder, (g) in connection with pledges
and assignments made pursuant to Section 9.04(g), (h) subject to an
agreement containing provisions substantially the same as those of this Section,
to (i) any actual or prospective assignee of or Participant in any of its
rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrower and its obligations, (i) with the
consent of the Borrower or (j) to the extent such Information either (i) becomes
publicly available other than as a result of a breach of this Section or (ii) becomes
available to any Lender Party on a nonconfidential basis from a source other
than the Borrower.  For the purposes of
this Section, “Information” means
all information received from the Borrower relating to the Borrower or its
business, other than any such information that is available to any Lender Party
on a nonconfidential basis before disclosure by the Borrower; provided that, in the case of information
received from the Borrower after the date hereof, such information is clearly
identified at the time of delivery as confidential.  Any Person required to maintain the confidentiality
of Information as provided in this Section shall be considered to have
complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the


 


104

















 


confidentiality of such
Information as such Person would accord to its own confidential information.


 


EACH LENDER ACKNOWLEDGES
THAT INFORMATION AS DEFINED IN SECTION 9.12(a) FURNISHED TO IT
PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING
THE BORROWER AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND
CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF
MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL
NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW,
INCLUDING FEDERAL AND STATE SECURITIES LAWS.


 


ALL INFORMATION, INCLUDING
REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER OR THE
ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS
AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL
NON-PUBLIC INFORMATION ABOUT THE BORROWER, THE CREDIT PARTIES AND THEIR RELATED
PARTIES OR THEIR RESPECTIVE SECURITIES. 
ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWER AND THE
ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE
A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN
MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES
AND APPLICABLE LAW.


 


Section 9.13.  PATRIOT Act.  Each Lender hereby notifies the
Borrower that pursuant to the requirements of the PATRIOT Act, it is required
to obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information
that will allow such Lender to identify the Borrower in accordance with the
PATRIOT Act.


 


105

















 


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


 


	
   

  	
  CLOUD PEAK ENERGY RESOURCES LLC, as Borrower

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Colin Marshall

  
	
   

  	
   

  	
  Name:

  	
  Colin Marshall

  
	
   

  	
   

  	
  Title:

  	
  President & CEO

  



 


[Signature Page to Credit Agreement]


 
















 


	
   

  	
  MORGAN STANLEY SENIOR
  FUNDING, INC., as a Lender and as Administrative Agent and Swingline Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter Zippelius

  
	
   

  	
   

  	
  Name:

  	
  Peter Zippelius

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  



 


[Signature Page to Credit Agreement]


 

















 


	
   

  	
  CREDIT SUISSE AG, CAYMAN
  ISLANDS BRANCH, as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Rianka Mohan

  
	
   

  	
   

  	
  Name:

  	
  Rianka Mohan

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Christopher Reo Day

  
	
   

  	
   

  	
  Name:

  	
  Christopher Reo Day

  
	
   

  	
   

  	
  Title:

  	
  Assocaiate

  



 


[Signature Page to Credit Agreement]


 

















 


	
   

  	
  ROYAL BANK OF CANADA,

  as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jason S. York

  
	
   

  	
   

  	
  Name:

  	
  Jason S. York

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  



 


[Signature Page to Credit Agreement]


 

















 


	
   

  	
  CALYON NEW YORK BRANCH

  as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ghislain Descamps

  
	
   

  	
   

  	
  Name:

  	
  Ghislain descamps

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CALYON NEW YORK BRANCH 

  as Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Elvis Grgurovic

  
	
   

  	
   

  	
  Name:

  	
  Elvis Grgurovic

  
	
   

  	
   

  	
  Title:

  	
  Director

  



 


[SIGNATURE PAGE to CREDIT AGREEMENT]


 

















 


	
   

  	
  JPMorgan Chase Bank, N.A. 

  as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter S. Predun

  
	
   

  	
   

  	
  Name:

  	
  Peter S. Predun

  
	
   

  	
   

  	
  Title:

  	
  Executive Director

  



 


[SIGNATURE PAGE to CREDIT AGREEMENT]


 

















 


	
   

  	
  The Bank of Nova Scotia

  
	
   

  	
   

  
	
   

  	
  as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ray Clarke

  
	
   

  	
   

  	
  Name:

  	
  Ray Clarke

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Elizabeth Daponte

  
	
   

  	
   

  	
  Name:

  	
  Elizabeth Daponte

  
	
   

  	
   

  	
  Title:

  	
  Associate Director

  



 

















 


	
   

  	
  Société Générale

  
	
   

  	
  as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Emmanuel Chesneau

  
	
   

  	
   

  	
  Name:

  	
  Emmanuel Chesneau

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  



 


[SIGNATURE PAGE to CREDIT AGREEMENT]


 

















 


	
   

  	
  WELLS FARGO BANK, NATIONAL
  ASSOCIATION, as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Troy S. Akagi

  
	
   

  	
   

  	
  Name:

  	
  Troy S. Akagi

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  



 


[Signature Page to Credit Agreement]


 

















 


	
   

  	
  Bank of Montreal, Chicago Branch

  as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joseph W. Linder

  
	
   

  	
   

  	
  Name:

  	
  Joseph W. Linder

  
	
   

  	
   

  	
  Title:

  	
  Vice-President

  



 


[SIGNATURE PAGE to CREDIT AGREEMENT]


 

















 


	
   

  	
  Citibank N.A.

  as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Raymond Dunning

  
	
   

  	
   

  	
  Name:

  	
  Raymond Dunning

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  



 

















 


	
   

  	
  RAYMOND JAMES BANK, FSB

  as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Garrett McKinnon

  
	
   

  	
   

  	
  Name:

  	
  Garrett McKinnon

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  



 


[SIGNATURE PAGE to CREDIT AGREEMENT]


 

















 


	
   

  	
  STATE BANK OF INDIA

  as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Prabodh Parikh

  
	
   

  	
   

  	
  Name:

  	
  Prabodh Parikh

  
	
   

  	
   

  	
  Title:

  	
  Vice President & Head (Credit) New York
  Branch 

  



 


[SIGNATURE PAGE to CREDIT AGREEMENT]


 
















 


	
   

  	
  Natixis, New York Branch

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Vincent Lauras

  
	
   

  	
   

  	
  Name:

  	
  Vincent Lauras

  
	
   

  	
   

  	
  Title:

  	
  Senior Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Amaury Courtial

  
	
   

  	
   

  	
  Name:

  	
  Amaury Courtial

  
	
   

  	
   

  	
  Title:

  	
  Director

  



 

















 


	
   

  	
  PNC Bank, National Association 

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard C. Munsick

  
	
   

  	
  Richard C. Munsick

  
	
   

  	
  Senior Vice President

  



 


[SIGNATURE
PAGE to CREDIT AGREEMENT]


 

















 


	
   

  	
  SunTrust Bank 

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Baerbel Freudenthaler

  
	
   

  	
   

  	
  Name:

  	
  Baerbel Freudenthaler

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  



 


[SIGNATURE
PAGE to CREDIT AGREEMENT]


 

















 


	
   

  	
  ING Capital LLC 

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Remko van de Water

  
	
   

  	
   

  	
  Name:

  	
  Remko van de Water

  
	
   

  	
   

  	
  Title:

  	
  Director

  



 


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  Capital One Leverage Finance Corp. 

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ron Walker

  
	
   

  	
   

  	
  Name:

  	
  Ron Walker

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  



 


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  MORGAN STANLEY BANK, N.A.,

  
	
   

  	
  as Issuing Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter Zippelius

  
	
   

  	
   

  	
  Name:

  	
  Peter Zippelius

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  



 


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  JPMORGAN CHASE BANK, N.A. 

  
	
   

  	
  as Issuing Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter S. Predun

  
	
   

  	
   

  	
  Name:

  	
  Peter S. Predun

  
	
   

  	
   

  	
  Title:

  	
  Executive Director

  



 


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  WELLS FARGO BANK, NATIONAL 

  ASSOCIATION, as Issuing Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Troy S. Akagi

  
	
   

  	
   

  	
  Name:

  	
  TROY S. AKAGI

  
	
   

  	
   

  	
  Title:

  	
  VICE PRESIDENT

  



 


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  CREDIT SUISSE AG, CAYMAN
  ISLANDS 

  BRANCH, as Issuing Bank 

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Hetu

  
	
   

  	
   

  	
  Name:

  	
  ROBERT HETU

  
	
   

  	
   

  	
  Title:

  	
  MANAGING DIRECTOR

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Christopher Reo Day

  
	
   

  	
   

  	
  Name:

  	
  CHRISTOPHER REO DAY

  
	
   

  	
   

  	
  Title:

  	
  ASSOCIATE

  



 


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  ROYAL BANK OF CANADA,

  
	
   

  	
  as Issuing Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jason S.York

  
	
   

  	
   

  	
  Name:

  	
  Jason S.York

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  



 


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