EXHIBIT
10.1


 


$125,000,000
SENIOR SECURED REVOLVING CREDIT FACILITY


 


 


CREDIT AGREEMENT


 


by and among


 


CAM HOLDINGS LLC


 


and


 


THE GUARANTORS PARTY HERETO


 


and


 


THE LENDERS PARTY HERETO


 


and


 


PNC BANK, NATIONAL ASSOCIATION, as Administrative
Agent



and



PNC CAPITAL MARKETS LLC. and

NATIONAL CITY BANK

as Joint Lead Arrangers


 


and


 


WACHOVIA BANK, NATIONAL ASSOCIATION,

ROYAL BANK OF CANADA, and

RAYMOND
JAMES BANK, FSB

as Co-Documentation Agents


 


Dated as of August 30, 2006


 

















 


	
  1.

  	
  CERTAIN
  DEFINITIONS

  	
  1

  
	
   

  	
  1.1

  	
  Certain Definitions

  	
  1

  
	
   

  	
  1.2

  	
  Construction

  	
  23

  
	
   

  	
   

  	
  1.2.1

  	
  Number; Inclusion

  	
  23

  
	
   

  	
   

  	
  1.2.2

  	
  Determination

  	
  23

  
	
   

  	
   

  	
  1.2.3

  	
  Agent’s Discretion and
  Consent

  	
  24

  
	
   

  	
   

  	
  1.2.4

  	
  Documents Taken as a
  Whole

  	
  24

  
	
   

  	
   

  	
  1.2.5

  	
  Headings

  	
  24

  
	
   

  	
   

  	
  1.2.6

  	
  Implied References to
  this Agreement

  	
  24

  
	
   

  	
   

  	
  1.2.7

  	
  Persons

  	
  24

  
	
   

  	
   

  	
  1.2.8

  	
  Modifications to
  Documents

  	
  24

  
	
   

  	
   

  	
  1.2.9

  	
  From, To and Through

  	
  24

  
	
   

  	
   

  	
  1.2.10

  	
  Shall; Will

  	
  24

  
	
  1.3

  	
   

  	
  Accounting Principles

  	
  25

  
	
   

  	
   

  	
   

  
	
  2.

  	
  REVOLVING
  CREDIT FACILITY

  	
  25

  
	
   

  	
  2.1

  	
  Revolving Credit
  Commitments

  	
  25

  
	
   

  	
  2.2

  	
  Nature of Lenders’
  Obligations with Respect to Revolving Credit Loans

  	
  25

  
	
   

  	
  2.3

  	
  Commitment Fees

  	
  26

  
	
   

  	
  2.4

  	
  Intentionally Deleted

  	
  26

  
	
   

  	
  2.5

  	
  Revolving Credit Loan
  Requests

  	
  26

  
	
   

  	
  2.6

  	
  Making Revolving Credit
  Loans

  	
  26

  
	
   

  	
  2.7

  	
  Revolving Credit Notes

  	
  27

  
	
   

  	
  2.8

  	
  Use of Proceeds

  	
  27

  
	
   

  	
  2.9

  	
  Letter of Credit Subfacility

  	
  27

  
	
   

  	
   

  	
  2.9.1

  	
  Issuance of Letters of
  Credit

  	
  27

  
	
   

  	
   

  	
  2.9.2

  	
  Letter of Credit Fees

  	
  28

  
	
   

  	
   

  	
  2.9.3

  	
  Disbursements,
  Reimbursement

  	
  28

  
	
   

  	
   

  	
  2.9.4

  	
  Repayment of
  Participation Advances

  	
  29

  
	
   

  	
   

  	
  2.9.5

  	
  Documentation

  	
  30

  
	
   

  	
   

  	
  2.9.6

  	
  Determinations to Honor
  Drawing Requests

  	
  30

  
	
   

  	
   

  	
  2.9.7

  	
  Nature of Participation
  and Reimbursement Obligations

  	
  30

  
	
   

  	
   

  	
  2.9.8

  	
  Indemnity

  	
  32

  
	
   

  	
   

  	
  2.9.9

  	
  Liability for Acts and
  Omissions

  	
  32

  
	
   

  	
  2.10

  	
  Increase in Commitments

  	
  34

  
	
   

  	
   

  	
  2.10.1

  	
  Increasing Lenders and
  New Lenders

  	
  34

  
	
   

  	
   

  	
  2.10.2

  	
  Treatment of Outstanding
  Loans and Letters of Credit

  	
  35

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  RESERVED

  	
  35

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  INTEREST
  RATES

  	
  35

  
	
   

  	
  4.1

  	
  Interest Rate Options

  	
  35

  
	
   

  	
   

  	
  4.1.1

  	
  Revolving Credit
  Interest Rate Options

  	
  36

  
	
   

  	
   

  	
  4.1.2

  	
  Rate Quotations

  	
  36

  



 

















 


TABLE OF CONTENTS


 


	
  Section

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.2

  	
  Interest Periods

  	
  36

  
	
   

  	
   

  	
  4.2.1

  	
  Amount of Borrowing
  Tranche

  	
  36

  
	
   

  	
   

  	
  4.2.2

  	
  Renewals

  	
  37

  
	
   

  	
  4.3

  	
  Interest After Default

  	
  37

  
	
   

  	
   

  	
  4.3.1

  	
  Letter of Credit Fees,
  Interest Rate

  	
  37

  
	
   

  	
   

  	
  4.3.2

  	
  Other Obligations

  	
  37

  
	
   

  	
   

  	
  4.3.3

  	
  Acknowledgment

  	
  37

  
	
   

  	
  4.4

  	
  Euro-Rate
  Unascertainable; Illegality; Increased Costs; Deposits Not Available

  	
  37

  
	
   

  	
   

  	
  4.4.1

  	
  Unascertainable

  	
  37

  
	
   

  	
   

  	
  4.4.2

  	
  Illegality; Increased Costs; Deposits Not Available

  	
  38

  
	
   

  	
   

  	
  4.4.3

  	
  Agent's and Lender's Rights

  	
  38

  
	
   

  	
  4.5

  	
  Selection of Interest Rate Options

  	
  39

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  PAYMENTS

  	
  39

  
	
   

  	
  5.1

  	
  Payments

  	
  39

  
	
   

  	
  5.2

  	
  Pro Rata Treatment of Lenders

  	
  39

  
	
   

  	
  5.3

  	
  Interest Payment Dates

  	
  40

  
	
   

  	
  5.4

  	
  Voluntary Prepayments

  	
  40

  
	
   

  	
   

  	
  5.4.1

  	
  Right to Prepay

  	
  40

  
	
   

  	
   

  	
  5.4.2

  	
  Replacement of a Lender

  	
  41

  
	
   

  	
   

  	
  5.4.3

  	
  Change of Lending Office

  	
  41

  
	
   

  	
   

  	
  5.4.4

  	
  Reduction of Commitment

  	
  41

  
	
   

  	
  5.5

  	
  Additional Compensation in Certain Circumstances

  	
  42

  
	
   

  	
   

  	
  5.5.1

  	
  Increased Costs or Reduced Return Resulting from Taxes, Reserves,
  Capital Adequacy Requirements, Expenses, Etc.

  	
  42

  
	
   

  	
   

  	
  5.5.2

  	
  Indemnity

  	
  43

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  REPRESENTATIONS AND WARRANTIES

  	
  43

  
	
   

  	
  6.1

  	
  Representations and Warranties

  	
  43

  
	
   

  	
   

  	
  6.1.1

  	
  Organization and Qualification

  	
  43

  
	
   

  	
   

  	
  6.1.2

  	
  Capitalization and Ownership

  	
  44

  
	
   

  	
   

  	
  6.1.3

  	
  Subsidiaries

  	
  44

  
	
   

  	
   

  	
  6.1.4

  	
  Power and Authority

  	
  44

  
	
   

  	
   

  	
  6.1.5

  	
  Validity and Binding Effect

  	
  44

  
	
   

  	
   

  	
  6.1.6

  	
  No Conflict

  	
  45

  
	
   

  	
   

  	
  6.1.7

  	
  Litigation

  	
  45

  
	
   

  	
   

  	
  6.1.8

  	
  Title to Properties

  	
  45

  
	
   

  	
   

  	
  6.1.9

  	
  Financial Statements

  	
  46

  
	
   

  	
   

  	
  6.1.10

  	
  Use of Proceeds; Margin Stock; Section 20 Subsidiaries

  	
  46

  
	
   

  	
   

  	
  6.1.11

  	
  Full Disclosure

  	
  47

  
	
   

  	
   

  	
  6.1.12

  	
  Taxes

  	
  47

  
	
   

  	
   

  	
  6.1.13

  	
  Consents and Approvals

  	
  47

  
	
   

  	
   

  	
  6.1.14

  	
  No Event of Default; Compliance with Instruments

  	
  48

  
	
   

  	
   

  	
  6.1.15

  	
  Patents, Trademarks, Copyrights, Licenses, Etc.

  	
  48

  



 


ii

















 


TABLE OF CONTENTS


 


	
  Section

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  6.1.16

  	
  Solvency

  	
  48

  
	
   

  	
   

  	
  6.1.17

  	
  Intentionally Omitted

  	
  49

  
	
   

  	
   

  	
  6.1.18

  	
  Insurance

  	
  49

  
	
   

  	
   

  	
  6.1.19

  	
  Compliance with Laws

  	
  49

  
	
   

  	
   

  	
  6.1.20

  	
  Material Contracts; Burdensome Restrictions

  	
  49

  
	
   

  	
   

  	
  6.1.21

  	
  Investment Companies; Regulated Entities

  	
  49

  
	
   

  	
   

  	
  6.1.22

  	
  Plans and Benefit Arrangements

  	
  50

  
	
   

  	
   

  	
  6.1.23

  	
  Employment Matters

  	
  51

  
	
   

  	
   

  	
  6.1.24

  	
  Environmental Matters

  	
  51

  
	
   

  	
   

  	
  6.1.25

  	
  Bonding Capacity

  	
  53

  
	
   

  	
   

  	
  6.1.26

  	
  Permit Blockage

  	
  53

  
	
   

  	
   

  	
  6.1.27

  	
  Security Interests

  	
  53

  
	
   

  	
   

  	
  6.1.28

  	
  Mortgage Liens

  	
  54

  
	
   

  	
   

  	
  6.1.29

  	
  Status of the Pledged Collateral

  	
  54

  
	
   

  	
   

  	
  6.1.30

  	
  Senior Debt Status

  	
  54

  
	
   

  	
   

  	
  6.1.31

  	
  Anti-Terrorism Laws

  	
  55

  
	
   

  	
  6.2

  	
  Updates to Schedules

  	
  56

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
  CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT

  	
  56

  
	
   

  	
  7.1

  	
  First Loans and Letters of Credit

  	
  56

  
	
   

  	
   

  	
  7.1.1

  	
  Officer's Certificate

  	
  56

  
	
   

  	
   

  	
  7.1.2

  	
  Secretary's Certificate

  	
  56

  
	
   

  	
   

  	
  7.1.3

  	
  Delivery of Loan Documents

  	
  57

  
	
   

  	
   

  	
  7.1.4

  	
  Opinion of Counsel

  	
  57

  
	
   

  	
   

  	
  7.1.5

  	
  Legal Details

  	
  58

  
	
   

  	
   

  	
  7.1.6

  	
  Payment of Fees

  	
  58

  
	
   

  	
   

  	
  7.1.7

  	
  Environmental Matters

  	
  58

  
	
   

  	
   

  	
  7.1.8

  	
  Capitalization of Borrower

  	
  58

  
	
   

  	
   

  	
  7.1.9

  	
  Consents

  	
  58

  
	
   

  	
   

  	
  7.1.10

  	
  Officer's Certificate Regarding MACs

  	
  59

  
	
   

  	
   

  	
  7.1.11

  	
  No Violation of Laws

  	
  59

  
	
   

  	
   

  	
  7.1.12

  	
  No Actions or Proceedings

  	
  59

  
	
   

  	
   

  	
  7.1.13

  	
  Insurance Policies; Certificates of Insurance; Endorsements

  	
  59

  
	
   

  	
   

  	
  7.1.14

  	
  UCC, Lien and Judgment Searches; Title Reports

  	
  59

  
	
   

  	
   

  	
  7.1.15

  	
  Sources and Uses

  	
  60

  
	
   

  	
   

  	
  7.1.16

  	
  Filing Receipts

  	
  60

  
	
   

  	
   

  	
  7.1.17

  	
  Administrative Questionnaire

  	
  60

  
	
   

  	
   

  	
  7.1.18

  	
  Financial Statements

  	
  60

  
	
   

  	
   

  	
  7.1.19

  	
  Termination of Existing Loan Agreements

  	
  60

  
	
   

  	
   

  	
  7.1.20

  	
  Solvency Certificate

  	
  60

  
	
   

  	
   

  	
  7.1.21

  	
  Lessor's Consents

  	
  61

  
	
   

  	
   

  	
  7.1.22

  	
  Satisfactory Coal Reserves and Facilities; Other Due Diligence

  	
  61

  
	
   

  	
   

  	
  7.1.23

  	
  Appraisals; Flood Insurance

  	
  61

  
	
   

  	
  7.2

  	
  Each Additional Loan or Letter of Credit

  	
  61

  



 


iii

















 


TABLE OF CONTENTS


 


	
  Section

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  8.

  	
  COVENANTS

  	
  62

  
	
   

  	
  8.1

  	
  Affirmative Covenants

  	
  62

  
	
   

  	
   

  	
  8.1.1

  	
  Preservation of Existence, Etc.

  	
  62

  
	
   

  	
   

  	
  8.1.2

  	
  Payment of Liabilities, Including Taxes, Etc.

  	
  62

  
	
   

  	
   

  	
  8.1.3

  	
  Maintenance of Insurance

  	
  62

  
	
   

  	
   

  	
  8.1.4

  	
  Maintenance of Properties and Leases

  	
  63

  
	
   

  	
   

  	
  8.1.5

  	
  Maintenance of Patents, Trademarks, Etc.

  	
  63

  
	
   

  	
   

  	
  8.1.6

  	
  Visitation Rights

  	
  63

  
	
   

  	
   

  	
  8.1.7

  	
  Keeping of Records and Books of Account

  	
  63

  
	
   

  	
   

  	
  8.1.8

  	
  Plans and Benefit Arrangements

  	
  64

  
	
   

  	
   

  	
  8.1.9

  	
  Compliance with Laws

  	
  64

  
	
   

  	
   

  	
  8.1.10

  	
  Use of Proceeds

  	
  64

  
	
   

  	
   

  	
  8.1.11

  	
  Further Assurances

  	
  64

  
	
   

  	
   

  	
  8.1.12

  	
  Subordination of Intercompany Loans

  	
  64

  
	
   

  	
   

  	
  8.1.13

  	
  Anti-Terrorism Laws

  	
  65

  
	
   

  	
   

  	
  8.1.14

  	
  Collateral and Additional Collateral, Etc.

  	
  65

  
	
   

  	
  8.2

  	
  Negative Covenants

  	
  66

  
	
   

  	
   

  	
  8.2.1

  	
  Indebtedness

  	
  66

  
	
   

  	
   

  	
  8.2.2

  	
  Liens

  	
  67

  
	
   

  	
   

  	
  8.2.3

  	
  Guaranties

  	
  67

  
	
   

  	
   

  	
  8.2.4

  	
  Loans and Investments

  	
  67

  
	
   

  	
   

  	
  8.2.5

  	
  Dividends and Related Distributions

  	
  68

  
	
   

  	
   

  	
  8.2.6

  	
  Liquidations, Mergers, Consolidations, Acquisitions

  	
  69

  
	
   

  	
   

  	
  8.2.7

  	
  Dispositions of Assets or Subsidiaries

  	
  70

  
	
   

  	
   

  	
  8.2.8

  	
  Affiliate Transactions

  	
  71

  
	
   

  	
   

  	
  8.2.9

  	
  Subsidiaries, Partnerships and Joint Ventures

  	
  71

  
	
   

  	
   

  	
  8.2.10

  	
  Continuation of or Change in Business

  	
  71

  
	
   

  	
   

  	
  8.2.11

  	
  Plans and Benefit Arrangements

  	
  72

  
	
   

  	
   

  	
  8.2.12

  	
  Fiscal Year

  	
  73

  
	
   

  	
   

  	
  8.2.13

  	
  Issuance of Stock, Partnership Interests or Member Interests

  	
  73

  
	
   

  	
   

  	
  8.2.14

  	
  Changes in Organizational Documents

  	
  73

  
	
   

  	
   

  	
  8.2.15

  	
  Capital Expenditures

  	
  73

  
	
   

  	
   

  	
  8.2.16

  	
  Operating Leases

  	
  74

  
	
   

  	
   

  	
  8.2.17

  	
  Maximum Leverage Ratio

  	
  74

  
	
   

  	
   

  	
  8.2.18

  	
  Minimum Interest Coverage Ratio

  	
  74

  
	
   

  	
   

  	
  8.2.19

  	
  No Limitation on Subsidiary Dividends
  and Distributions

  	
  74

  
	
   

  	
   

  	
  8.2.20

  	
  Negative Pledges

  	
  74

  
	
   

  	
  8.3

  	
  Reporting Requirements

  	
  75

  
	
   

  	
   

  	
  8.3.1

  	
  Intentionally Omitted

  	
  75

  
	
   

  	
   

  	
  8.3.2

  	
  Quarterly Financial Statements

  	
  75

  
	
   

  	
   

  	
  8.3.3

  	
  Annual Financial Statements

  	
  75

  
	
   

  	
   

  	
  8.3.4

  	
  Certificate of the Borrower

  	
  75

  
	
   

  	
   

  	
  8.3.5

  	
  Notice of Default

  	
  76

  
	
   

  	
   

  	
  8.3.6

  	
  Notice of Litigation

  	
  76

  
	
   

  	
   

  	
  8.3.7

  	
  Certain Events

  	
  76

  



 


iv

















 


TABLE OF CONTENTS


 


	
  Section

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  8.3.8

  	
  Budgets, Forecasts, Other Reports and Information

  	
  76

  
	
   

  	
   

  	
  8.3.9

  	
  Notices Regarding Plans and Benefit Arrangements

  	
  77

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
  DEFAULT

  	
  78

  
	
   

  	
  9.1

  	
  Events of Default

  	
  78

  
	
   

  	
   

  	
  9.1.1

  	
  Payments Under Loan Documents

  	
  78

  
	
   

  	
   

  	
  9.1.2

  	
  Breach of Warranty

  	
  79

  
	
   

  	
   

  	
  9.1.3

  	
  Breach of Negative Covenants and Certain Affirmative Covenants

  	
  79

  
	
   

  	
   

  	
  9.1.4

  	
  Breach of Other Covenants

  	
  79

  
	
   

  	
   

  	
  9.1.5

  	
  Defaults in Other Agreements or Indebtedness

  	
  79

  
	
   

  	
   

  	
  9.1.6

  	
  Final Judgments or Orders

  	
  79

  
	
   

  	
   

  	
  9.1.7

  	
  Loan Document Unenforceable

  	
  79

  
	
   

  	
   

  	
  9.1.8

  	
  Uninsured Losses; Proceedings Against Assets

  	
  80

  
	
   

  	
   

  	
  9.1.9

  	
  Notice of Lien or Assessment

  	
  80

  
	
   

  	
   

  	
  9.1.10

  	
  Insolvency

  	
  80

  
	
   

  	
   

  	
  9.1.11

  	
  Events Relating to Plans and Benefit Arrangements

  	
  80

  
	
   

  	
   

  	
  9.1.12

  	
  Cessation of Business

  	
  81

  
	
   

  	
   

  	
  9.1.13

  	
  Change of Control

  	
  81

  
	
   

  	
   

  	
  9.1.14

  	
  Involuntary Proceedings

  	
  81

  
	
   

  	
   

  	
  9.1.15

  	
  Voluntary Proceedings

  	
  81

  
	
   

  	
   

  	
  9.1.16

  	
  Loss of Bonding Capability

  	
  81

  
	
   

  	
  9.2

  	
  Consequences of Event of Default

  	
  82

  
	
   

  	
   

  	
  9.2.1

  	
  Events of Default Other Than Bankruptcy, Insolvency or Reorganization
  Proceedings

  	
  82

  
	
   

  	
   

  	
  9.2.2

  	
  Bankruptcy, Insolvency or Reorganization Proceedings

  	
  82

  
	
   

  	
   

  	
  9.2.3

  	
  Set-off

  	
  82

  
	
   

  	
   

  	
  9.2.4

  	
  Suits, Actions, Proceedings

  	
  83

  
	
   

  	
   

  	
  9.2.5

  	
  Application of Proceeds; Collateral Sharing

  	
  83

  
	
   

  	
   

  	
  9.2.6

  	
  Other Rights and Remedies

  	
  84

  
	
   

  	
  9.3

  	
  Notice of Sale

  	
  85

  
	
   

  	
   

  	
  10.

  	
  THE AGENT

  	
  85

  
	
   

  	
   

  	
  10.1

  	
  Appointment

  	
  85

  
	
   

  	
   

  	
  10.2

  	
  Delegation of Duties

  	
  85

  
	
   

  	
   

  	
  10.3

  	
  Nature of Duties; Independent Credit Investigation

  	
  85

  
	
   

  	
   

  	
  10.4

  	
  Actions in Discretion of Agent; Instructions From the Lenders

  	
  86

  
	
   

  	
   

  	
  10.5

  	
  Reimbursement and Indemnification of Agent by the Borrower

  	
  86

  
	
   

  	
   

  	
  10.6

  	
  Exculpatory Provisions; Limitation of Liability

  	
  87

  
	
   

  	
   

  	
  10.7

  	
  Reimbursement and Indemnification of Agent by Lenders

  	
  88

  
	
   

  	
   

  	
  10.8

  	
  Reliance by Agent

  	
  88

  
	
   

  	
   

  	
  10.9

  	
  Notice of Default

  	
  88

  
	
   

  	
   

  	
  10.10

  	
  Notices

  	
  89

  
	
   

  	
   

  	
  10.11

  	
  Lenders in Their Individual Capacities; Agent in its Individual
  Capacity

  	
  89

  
	
   

  	
   

  	
  10.12

  	
  Holders of Notes

  	
  89

  



 


v

















 


TABLE OF CONTENTS


 


	
  Section

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  10.13

  	
  Equalization of Lenders

  	
  89

  
	
   

  	
   

  	
  10.14

  	
  Successor Agent

  	
  90

  
	
   

  	
   

  	
  10.15

  	
  Agent's Fee

  	
  90

  
	
   

  	
   

  	
  10.16

  	
  Availability of Funds

  	
  91

  
	
   

  	
   

  	
  10.17

  	
  Calculations

  	
  91

  
	
   

  	
   

  	
  10.18

  	
  No Reliance on Agent's Customer Identification Program

  	
  91

  
	
   

  	
   

  	
  10.19

  	
  Beneficiaries

  	
  92

  
	
  11.

  	
  MISCELLANEOUS

  	
  92

  
	
   

  	
  11.1

  	
  Modifications, Amendments or Waivers

  	
  92

  
	
   

  	
   

  	
  11.1.1

  	
  Increase of Commitment; Extension of Expiration Date

  	
  92

  
	
   

  	
   

  	
  11.1.2

  	
  Extension of Payment; Reduction of Principal, Interest or Fees; Modification
  of Terms of Payment

  	
  92

  
	
   

  	
   

  	
  11.1.3

  	
  Release of Collateral or Guarantor

  	
  92

  
	
   

  	
   

  	
  11.1.4

  	
  Miscellaneous

  	
  93

  
	
   

  	
  11.2

  	
  No Implied Waivers; Cumulative Remedies; Writing Required

  	
  93

  
	
   

  	
  11.3

  	
  Reimbursement and Indemnification of Lenders by the Borrower; Taxes

  	
  93

  
	
   

  	
  11.4

  	
  Holidays

  	
  94

  
	
   

  	
  11.5

  	
  Funding by Branch, Subsidiary or Affiliate

  	
  94

  
	
   

  	
   

  	
  11.5.1

  	
  Notional Funding

  	
  94

  
	
   

  	
   

  	
  11.5.2

  	
  Actual Funding

  	
  95

  
	
   

  	
  11.6

  	
  Notices

  	
  95

  
	
   

  	
  11.7

  	
  Severability

  	
  96

  
	
   

  	
  11.8

  	
  Governing Law

  	
  96

  
	
   

  	
  11.9

  	
  Prior Understanding

  	
  96

  
	
   

  	
  11.10

  	
  Duration; Survival

  	
  96

  
	
   

  	
  11.11

  	
  Successors and Assigns

  	
  97

  
	
   

  	
  11.12

  	
  Confidentiality

  	
  98

  
	
   

  	
   

  	
  11.12.1

  	
  General

  	
  98

  
	
   

  	
   

  	
  11.12.2

  	
  Sharing Information With Affiliates of the Lenders

  	
  98

  
	
   

  	
  11.13

  	
  Counterparts

  	
  99

  
	
   

  	
  11.14

  	
  Agent's or Lender's Consent

  	
  99

  
	
   

  	
  11.15

  	
  Exceptions

  	
  99

  
	
   

  	
  11.16

  	
  CONSENT TO FORUM; WAIVER OF JURY TRIAL

  	
  99

  
	
   

  	
  11.17

  	
  Certifications From Lenders and Participants

  	
  100

  
	
   

  	
   

  	
  11.17.1

  	
  Tax Withholding

  	
  100

  
	
   

  	
   

  	
  11.17.2

  	
  USA Patriot Act

  	
  100

  
	
   

  	
  11.18

  	
  Joinder of Guarantors

  	
  101

  
	
   

  	
  11.19

  	
  Acknowledgment

  	
  101

  
	
   

  	
  11.20

  	
  Certain Actions by Agent

  	
  101

  



 


vi

















 


LIST OF SCHEDULES AND EXHIBITS


 


	
  SCHEDULES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 1.1(A)

  	
  -

  	
  PRICING GRID

  
	
  SCHEDULE 1.1(B)

  	
  -

  	
  COMMITMENTS OF LENDERS
  AND ADDRESSES FOR NOTICES

  
	
  SCHEDULE 1.1(P)

  	
  -

  	
  PERMITTED LIENS

  
	
  SCHEDULE 6.1.1

  	
  -

  	
  QUALIFICATIONS TO DO
  BUSINESS

  
	
  SCHEDULE 6.1.2

  	
  -

  	
  CAPITALIZATION

  
	
  SCHEDULE 6.1.3

  	
  -

  	
  SUBSIDIARIES

  
	
  SCHEDULE 6.1.8

  	
  -

  	
  OWNED AND LEASED REAL
  PROPERTY

  
	
  SCHEDULE 6.1.13

  	
  -

  	
  CONSENTS AND APPROVALS

  
	
  SCHEDULE 6.1.15

  	
  -

  	
  PATENTS, TRADEMARKS,
  COPYRIGHTS, LICENSES, ETC.

  
	
  SCHEDULE 6.1.18

  	
  -

  	
  INSURANCE POLICIES

  
	
  SCHEDULE 6.1.20

  	
  -

  	
  MATERIAL CONTRACTS

  
	
  SCHEDULE 6.1.22

  	
  -

  	
  EMPLOYEE BENEFIT PLAN
  DISCLOSURES

  
	
  SCHEDULE 6.1.24

  	
  -

  	
  ENVIRONMENTAL
  DISCLOSURES

  
	
  SCHEDULE 6.1.28

  	
  -

  	
  EXCLUDED PROPERTY

  
	
  SCHEDULE 6.1.29

  	
  -

  	
  PARTNERSHIP
  AGREEMENTS; LLC AGREEMENTS

  
	
  SCHEDULE
  7.1.19

  	
  -

  	
  EXISTING
  DEBT

  
	
  SCHEDULE 8.2.1

  	
  -

  	
  PERMITTED INDEBTEDNESS

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT 1.1(A)

  	
  -

  	
  ASSIGNMENT AND
  ASSUMPTION AGREEMENT

  
	
  EXHIBIT 1.1(G)(1)

  	
  -

  	
  GUARANTOR JOINDER

  
	
  EXHIBIT 1.1(G)(2)

  	
  -

  	
  GUARANTY AGREEMENT

  
	
  EXHIBIT 1.1(I)(1)

  	
  -

  	
  REGULATED SUBSTANCES
  CERTIFICATE AND INDEMNITY AGREEMENT

  
	
  EXHIBIT 1.1(I)(2)

  	
  -

  	
  INTERCOMPANY
  SUBORDINATION AGREEMENT

  
	
  EXHIBIT 1.1(M)

  	
  -

  	
  MORTGAGE

  
	
  EXHIBIT 1.1(P)(1)

  	
  -

  	
  PATENT, TRADEMARK AND
  COPYRIGHT SECURITY AGREEMENT

  
	
  EXHIBIT 1.1(P)(2)

  	
  -

  	
  PLEDGE AGREEMENT

  
	
  EXHIBIT 1.1(P)(3)

  	
  -

  	
  PLEDGE AGREEMENT
  (BORROWER)

  
	
  EXHIBIT 1.1(R)

  	
  -

  	
  REVOLVING CREDIT NOTE

  
	
  EXHIBIT 1.1(S)(1)

  	
  -

  	
  SECURITY AGREEMENT OF
  BORROWER

  
	
  EXHIBIT 1.1(S)(2)

  	
  -

  	
  SECURITY AGREEMENT OF
  GUARANTORS

  
	
  EXHIBIT 1.1(W)

  	
  -

  	
  WEXFORD SUBORDINATION
  AGREEMENT

  
	
  EXHIBIT 2.5

  	
  -

  	
  LOAN REQUEST

  
	
  EXHIBIT 7.1.4(A)

  	
  -

  	
  OPINION OF COUNSEL

  
	
  EXHIBIT 7.1.4(B)

  	
  -

  	
  OPINION OF LOCAL
  COUNSEL

  
	
  EXHIBIT 7.1.4(C)

  	
  -

  	
  OPINION OF WEXFORD
  COUNSEL

  
	
  EXHIBIT 8.2.6

  	
  -

  	
  ACQUISITION COMPLIANCE
  CERTIFICATE

  
	
  EXHIBIT 8.3.4

  	
  -

  	
  QUARTERLY COMPLIANCE
  CERTIFICATE

  



 














 


CREDIT AGREEMENT


 


THIS CREDIT AGREEMENT
is dated as of August 30, 2006, and is made by and among CAM HOLDINGS LLC, a Delaware limited liability company (the “Borrower”),
EACH OF THE GUARANTORS (as hereinafter
defined), the LENDERS (as hereinafter defined),
and PNC BANK, NATIONAL ASSOCIATION, in its
capacity as administrative agent for the Lenders under this Agreement
(hereinafter referred to in such capacity as the “Agent”).


 


WITNESSETH:


 


WHEREAS, the
Borrower and the other Loan Parties (defined hereinafter) have requested the
Lenders to provide a revolving credit facility to the Borrower in an aggregate
principal amount not to exceed $125,000,000; and


 


WHEREAS, the
revolving credit facility shall be used: 
(i) for refinancing Existing Debt of the Loan Parties, (ii) for
working capital, (iii) for funding for Permitted Acquisitions, and (iv) for
general corporate purposes of the Loan Parties; and


 


WHEREAS, the
Lenders are willing to provide such credit upon the terms and conditions
hereinafter set forth.


 


NOW, THEREFORE,
the parties hereto, in consideration of their mutual covenants and agreements
hereinafter set forth and intending to be legally bound hereby, covenant and
agree as follows:


 


1.     CERTAIN DEFINITIONS


 


1.1                   Certain
Definitions.


 


In addition to
words and terms defined elsewhere in this Agreement, the following words and
terms shall have the following meanings, respectively, unless the context
hereof clearly requires otherwise:


 


Active Operating
Properties shall
mean all owned and leased real property included in outstanding permits issued
to any of the Loan Parties or any Subsidiary of any Loan Party.


 


Affiliate as to any Person shall mean any other
Person:  (i) which directly or
indirectly controls, is controlled by, or is under common control with such
Person, (ii) which beneficially owns or holds 5% or more of any class of
the voting or other equity interests of such Person, or (iii) 5% or more
of any class of voting interests or other equity interests of which is
beneficially owned or held, directly or indirectly, by such Person.  Control, as used in this definition, shall
mean 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
ownership of voting 


 

















 


securities, by
contract or otherwise, including the power to elect a majority of the directors
or trustees of a corporation or trust, as the case may be.


 


Agent shall mean PNC Bank, National
Association, and its successors and assigns in its capacity as the
administrative agent for the Lenders.


 


Agent’s Fee shall have the meaning assigned to that
term in Section 10.15.


 


Agent’s Letter shall have the meaning assigned to that
term in Section 10.15.


 


Agreement shall mean this Credit Agreement, as the
same may be supplemented or amended from time to time, including all schedules
and exhibits.


 


Ancillary Security
Documents shall
mean all documents, instruments, environmental reports, agreements,
endorsements, policies and certificates requested by the Agent and customarily
delivered by any property owner in connection with a mortgage financing.  Without limiting the generality of the
foregoing, examples of Ancillary Security Documents would include insurance
policies or certificates regarding any collateral, title insurance policies,
appraisals, lien searches, estoppel letters, flood insurance certifications,
environmental audits which shall meet the Agent’s minimum requirements for
phase I environmental assessments or phase II environmental assessments, as
applicable, opinions of counsel, and the like.


 


Annual Statements shall have the meaning assigned to that
term in Section 6.1.9(i).


 


Anti-Terrorism
Laws shall mean any Laws relating to terrorism or money laundering,
including Executive Order No. 13224, the USA Patriot Act, the Laws
comprising or implementing the Bank Secrecy Act, and the Laws administered by
the United States Treasury Department’s Office of Foreign Asset Control (as any
of the foregoing Laws may from time to time be amended, renewed, extended, or replaced).


 


Applicable Commitment Fee
Rate shall mean
the percentage rate per annum based on the indicated Leverage Ratio of the Loan
Parties in the pricing grid on Schedule 1.1(A) below the heading “Commitment
Fee.”


 


Applicable Letter of
Credit Fee Rate shall
mean the percentage rate per annum based on the Leverage Ratio then in effect
according to the pricing grid on Schedule 1.1(A) below the heading “Applicable
Letter of Credit Fee.”  The Applicable
Letter of Credit Fee Rate shall be computed in accordance with the parameters
set forth on Schedule 1.1(A).


 


Applicable
Margin shall
mean, as applicable:


 


(A)          the percentage margin to be added to Base Rate under
the Base Rate Option for the applicable type of Loan at the indicated
Applicable Leverage Ratio of the Loan Parties in the pricing grid on Schedule
1.1(A) below the “Base Rate Margin” headings; or


 


2

















 


(B)           the percentage margin to be added to Euro-Rate under
the Euro-Rate Option for the applicable type of Loan at the indicated
Applicable Leverage Ratio of the Loan Parties in the pricing grid on Schedule
1.1(A) below the “Euro-Rate Margin headings.


 


Any change in the
Applicable Margin shall be based upon the financial statements and compliance
certificates provided pursuant to Sections 8.3.2 [Quarterly Financial
Statements] and 8.3.3 [Annual Financial Statements] and shall become effective
on the date such financial statements are due in accordance with Section 8.3.4
[Certificate of the Borrower].  Notwithstanding
anything to the contrary contained herein, the Applicable Margin during the
period from the Closing Date through the Financials Delivery Date for the March 31,
2007 Compliance Certificate, shall not be less than  the percentage margins applicable to Level
III as indicated in the pricing grid on Schedule 1.1(A).


 


Assignment and Assumption
Agreement shall
mean an Assignment and Assumption Agreement by and among a Purchasing Lender, a
Transferor Lender and the Agent, as Agent and on behalf of the remaining
Lenders, substantially in the form of Exhibit 1.1(A).


 


Authorized Officer shall mean those individuals, designated
by written notice to the Agent from the Borrower, authorized to execute
notices, reports and other documents on behalf of the Loan Parties required
hereunder.  The Borrower may amend such
list of individuals from time to time by giving written notice of such
amendment to the Agent.


 


Availability shall mean, as of the date of
determination, an amount, which equals the difference (if a positive number)
between the amount of the Revolving Credit Commitments as of such date, less
the Revolving Facility Usage as of such date.


 


Base Rate shall mean the greater of:  (i) the interest rate per annum
announced from time to time by the Agent at its Principal Office as its then
prime rate, which rate may not be the lowest rate then being charged commercial
borrowers by the Agent, or (ii) the Federal Funds Open Rate plus 0.5% per
annum.


 


Base Rate Option shall mean the Revolving Credit Base
Rate Option.


 


Benefit Arrangement shall mean at any time an “employee
benefit plan,” within the meaning of Section 3(3) of ERISA, which is
neither a Plan nor a Multiemployer Plan and which is maintained, sponsored or
otherwise contributed to by any member of the ERISA Group.


 


Blocked Person shall have the meaning assigned to that
term in Section 6.1.31.2.


 


Borrower shall mean CAM Holdings LLC, a limited
liability company organized and existing under the laws of the State of
Delaware.


 


3

















 


Borrowing Date shall mean, with respect to any Loan,
the date for the making thereof or the renewal or conversion thereof at or to
the same or a different Interest Rate Option, which shall be a Business Day.


 


Borrowing Tranche shall mean specified portions of Loans
outstanding as follows:  (i) any
Loans to which a Euro-Rate Option applies which become subject to the same
Interest Rate Option under the same Loan Request by the Borrower and which have
the same Interest Period shall constitute one Borrowing Tranche, and (ii) all
Loans to which a Base Rate Option applies shall constitute one Borrowing
Tranche.


 


Business Day shall mean any day other than a Saturday
or Sunday or a legal holiday on which commercial banks are authorized or
required to be closed for business in Pittsburgh, Pennsylvania or New York, New
York and if the applicable Business Day relates to any Loan to which the
Euro-Rate Option applies, such day must also be a day on which dealings are
carried on in the London interbank market.


 


CH Provider shall have the meaning assigned to that
term in Section 9.2.5.2.


 


Change of Control shall mean that Wexford Capital LLC and
any fund owned or managed by Wexford Capital LLC (collectively, “Wexford”) and
Terry N. Coleman, collectively:   (i) directly or
indirectly fail to control the Borrower, (ii) shall fail to own directly
or indirectly, 75% of any class of the voting member interests of the Borrower
and 75% of the economic ownership of the Borrower or (iii) shall make any
public sale of the member interests of the Borrower.  Control, as used in this definition, shall
mean 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
ownership of voting securities, by contract or otherwise.


 


Closing Date shall mean August 30, 2006.


 


Coal Reserves shall mean any and all coal reserves
(expressly excluding inventory) which could be economically and legally
extracted or produced at the time of determination for which:  (a) quantity is computed from dimensions
revealed in outcrops, trenches, workings or drill holes; grade and/or quality
are computed from the results of detailed sampling and (b) the sites for
inspection, sampling, and measurement are either:  (i) spaced so closely and the geologic
character is so well defined that size, shape, depth, and mineral content of
coal reserves are well-established or (ii) farther apart or are otherwise
less adequately spaced, and a degree of assurance, although lower than that for
proved reserves as described in the preceding clause (i), is high enough to
assume continuity between points of observation, in any case by available
exploration data and which meet minimum industry accepted standards, and in any
case wheresoever located and whether now owned or hereafter acquired by any
Loan Party.


 


Collateral shall mean the property of the Loan
Parties in which Liens are to be granted under the Security Documents.


 


4

















 


Commitment shall mean as to any Lender its
Revolving Credit Commitment, and Commitments shall mean the aggregate of
the Revolving Credit Commitments of all of the Lenders.


 


Commitment Fee shall have the meaning assigned to that
term in Section 2.3.


 


Commodity Hedge shall mean a price protection
agreement:  (i) related to crude
oil, diesel fuel, heating oil, coal, SO2 allowances, natural gas or other
commodities used in the ordinary course of business of the Loan Parties and (ii) entered
into by the Loan Parties for hedging purposes in the ordinary course of the
operations of their business (and not for speculation).


 


Compliance Certificate shall have the meaning assigned to that
term in Section 8.3.4.


 


Consolidated Assets shall mean the Loan Parties’ consolidated assets as
reflected in the most recent financial statements delivered pursuant to Section 8.3.2.


 


Consolidated EBITDA 
shall mean, for any period of determination, Consolidated Net Income for
such period, (x) excluding therefrom (A) any non-cash extraordinary items
of gain or loss (including those items created by mandated changes in
accounting treatment) and (B) any gain or loss of any other Person
accounted for on the equity method, except to the extent of cash distributions
received during the relevant period (y) plus the aggregate amounts
deducted in determining Consolidated Net Income for such period in respect
of:  (i) Consolidated Interest
Expense, (ii) income taxes, (iii) depletion and depreciation expense
and (iv) amortization expense; provided, however, that for
the purposes of this definition, with respect to a business acquired by the
Loan Parties pursuant to a Permitted Acquisition, Consolidated EBITDA shall be
calculated on a pro forma basis, using historical numbers, in accordance with
GAAP as if the Permitted Acquisition had been consummated at the beginning of
such period, and provided, further, that for the purposes of this
definition, with respect to a business or assets disposed of by the Loan
Parties pursuant to Section 8.2.7, Consolidated EBITDA shall be calculated
as if such disposition had been consummated at the beginning of such period.


 


Consolidated Interest
Expense for any
period of determination shall mean, on a consolidated basis, the sum of all
interest (including the interest portion of any capitalized lease obligations)
and letter of credit fees or commissions due and payable by the Borrower and
its consolidated Subsidiaries with regard to Indebtedness for such period.  For purposes of the above calculation, with
respect to a business acquired by the Loan Parties pursuant to a Permitted
Acquisition, Consolidated Interest Expense shall be calculated on a pro forma
basis in accordance with GAAP as if the Indebtedness associated with the
Permitted Acquisition had been incurred on the first day of such period.


 


Consolidated Net Income shall mean the net income (or deficit)
of the Borrower and its consolidated Subsidiaries, for the period in question,
after deducting all 


 


5

















 


operating expenses,
provisions for all taxes and reserves (including reserves for all deferred
income taxes) and all other proper deductions, all determined on a consolidated
basis.


 


Consolidated Tangible Net
Worth shall mean
as of any date of determination total stockholders’ equity less intangible
assets of the Borrower and its Subsidiaries as of such date determined and
consolidated in accordance with GAAP.


 


Consolidated Total
Indebtedness
shall mean the Indebtedness of the Borrower and its Subsidiaries determined and
consolidated in accordance with GAAP.  It is specifically agreed that Consolidated
Total Indebtedness shall  not include any contingent obligations
of the Borrower and its Subsidiaries with respect to surety bonds entered into
in the ordinary course of business or letters of credit delivered in lieu
thereof; provided that if any such obligations become due and payable and are
not paid within fifteen (15) Business Days of the due date therefor, such
obligations shall be included in Consolidated Total Indebtedness.


 


Contamination shall mean the presence or release or
threat of release of Regulated Substances in, on, under or emanating to or from
the Property, which pursuant to Environmental Laws requires notification or
reporting to an Official Body, or which pursuant to Environmental Laws requires
the investigation, cleanup, removal, remediation, containment, abatement of or
other response action or which otherwise constitutes a violation of
Environmental Laws.


 


Distributions shall mean any payment, dividend or other
distribution by a Person of any nature (whether in cash, property, securities
or otherwise) on account of or in respect of its shares of capital stock,
partnership interests, limited liability company interests or other equity or
ownership interests or on account of the purchase, redemption, retirement or
acquisition of its shares of capital stock (or warrants, options or rights
therefor), partnership interests, limited liability company interests or other
equity or ownership interests.


 


Dollar, Dollars, U.S.
Dollars and the
symbol $ shall mean lawful money of the United States of America.


 


Drawing Date shall have the meaning assigned to that
term in Section 2.9.3.2.


 


Environmental Complaint shall mean any written complaint by any
Person or Official Body setting forth a cause of action for personal injury or
property damage, natural resource damage, contribution or indemnity for
response costs, civil or administrative penalties, criminal fines or penalties,
or declaratory or equitable relief arising under any Environmental Laws or any
order, notice of violation, citation, subpoena, request for information or
other written notice or demand of any type issued by an Official Body pursuant
to any Environmental Laws.


 


Environmental Laws shall mean all federal, state, local and
foreign Laws and any consent decrees, settlement agreements, judgments, orders,
directives, policies or programs issued by or entered into with an Official
Body pertaining or relating to:  (i) pollution



 


6

















 


or pollution
control; (ii) protection of human health or the environment; (iii) employee
safety in the workplace; (iv) the presence, use, management, generation,
manufacture, processing, extraction, treatment, recycling, refining, reclamation,
labeling, transport, storage, collection, distribution, disposal or release or
threat of release of Regulated Substances; (v) the presence of
Contamination; (vi) the protection of endangered or threatened species;
and (vii) the protection of Environmentally Sensitive Areas.


 


Environmentally Sensitive
Area shall
mean:  (i) any wetland as defined by
applicable Environmental Laws; (ii) any area designated as a coastal zone
pursuant to applicable Laws, including Environmental Laws; (iii) any area
of historic or archeological significance or scenic area as defined or
designated by applicable Laws, including Environmental Laws; (iv) habitats
of endangered species or threatened species as designated by applicable Laws,
including Environmental Laws; or (v) a floodplain or other flood hazard
area as defined pursuant to any applicable Laws.


 


ERISA shall mean the Employee Retirement
Income Security Act of 1974, as the same may be amended or supplemented from
time to time, and any successor statute of similar import, and the rules and
regulations thereunder, as from time to time in effect.


 


ERISA Group shall mean, at any time, the Borrower
and all members of a controlled group of corporations and all trades or
businesses (whether or not incorporated) under common control and all other
entities which, together with the Borrower, are treated as a single employer
under Section 414 of the Internal Revenue Code.


 


Euro-Rate shall mean, with respect to the Loans
comprising any Borrowing Tranche to which the Euro-Rate Option applies for any
Interest Period, the interest rate per annum determined by the Agent by
dividing (the resulting quotient rounded upwards, if necessary, to the nearest
1/100th of 1% per annum):  (i) the
rate of interest determined by the Agent in accordance with its usual
procedures (which determination shall be conclusive absent manifest error) to
be the average of the London interbank offered rates for U.S. Dollars quoted by
the British Bankers’ Association as set forth on Moneyline Telerate (or
appropriate successor or, if the British Bankers’ Association or its successor
ceases to provide such quotes, a comparable replacement determined by the
Agent) display page 3750 (or such other display page on the Moneyline
Telerate service as may replace display page 3750) two (2) Business
Days prior to the first day of such Interest Period for an amount comparable to
such Borrowing Tranche and having a borrowing date and a maturity comparable to
such Interest Period by (ii) a number equal to 1.00 minus the Euro-Rate
Reserve Percentage.  The Euro-Rate may
also be expressed by the following formula:


 


Average of London
interbank offered rates quoted 

by BBA or appropriate successor as shown on


Euro-Rate =           Moneyline Telerate Service display page 3750


1.00 - Euro-Rate
Reserve Percentage


 


The Euro-Rate
shall be adjusted with respect to any Loan to which the Euro-Rate Option
applies that is outstanding on the effective date of any change in the
Euro-Rate Reserve Percentage as of 


 


7

















 


such effective
date.  The Agent shall give prompt notice
to the Borrower of the Euro-Rate as determined or adjusted in accordance
herewith, which determination shall be conclusive absent manifest error.


 


Euro-Rate Option shall mean the Revolving Credit
Euro-Rate Option.


 


Euro-Rate Reserve
Percentage shall
mean as of any day the maximum percentage in effect on such day, as prescribed
by the Board of Governors of the Federal Reserve System (or any successor) for
determining the reserve requirements (including supplemental, marginal and
emergency reserve requirements) with respect to eurocurrency funding (currently
referred to as “Eurocurrency Liabilities”).


 


Event of Default shall mean any of the events described
in Section 9.1 and referred to therein as an “Event of Default.”


 


Excluded Property shall have the meaning assigned to that
term in Section 6.1.28.


 


Excluded Subsidiaries shall mean individually and
collectively, CAM - Illinois LLC and CAM - Colorado LLC.


 


Executive Order No. 13224 shall mean the Executive Order No. 13224
on Terrorist Financing, effective September 24, 2001, as the same has
been, or shall hereafter be, renewed, extended, amended or replaced.


 


Existing Debt shall have the meaning assigned to that
term in Section 7.1.19.


 


Existing Lender shall have the meaning assigned to that
term in Section 2.10.1.


 


Expiration Date shall mean, with respect to the
Revolving Credit Commitments, August 30, 2011.


 


Federal Funds Effective
Rate for any day
shall mean the rate per annum (based on a year of 360 days and actual days
elapsed and rounded upward to the nearest 1/100 of 1%) announced by the Federal
Reserve Bank of New York (or any successor) on such day as being the weighted
average of the rates on overnight federal funds transactions arranged by
federal funds brokers on the previous trading day, as computed and announced by
such Federal Reserve Bank (or any successor) in substantially the same manner
as such Federal Reserve Bank computes and announces the weighted average it
refers to as the “Federal Funds Effective Rate” as of the date of this
Agreement; provided, if such Federal Reserve Bank (or its successor)
does not announce such rate on any day, the “Federal Funds Effective Rate” for
such day shall be the Federal Funds Effective Rate for the last day on which
such rate was announced.


 


Federal Funds Open Rate. 
The rate per annum determined by the Agent in accordance with its usual
procedures (which determination shall be conclusive absent manifest 


 


8

















 


error) to be the “open”
rate for federal funds transactions as of the opening of business for federal
funds transactions among members of the Federal Reserve System arranged by
federal funds brokers on such day, as quoted by Garvin Guybutler, any successor
entity thereto, or any other broker selected by the Lender, as set forth on the
applicable Telerate display page; provided, however; that if such
day is not a Business Day, the Federal Funds Open Rate for such day shall be
the “open” rate on the immediately preceding Business Day, or if no such rate
shall be quoted by a Federal funds broker at such time, such other rate as
determined by the Agent in accordance with its usual procedures.


 


Financial Projections shall have the meaning assigned to that
term in Section 6.1.9(ii).


 


Financials Delivery Date shall mean the date on which the
Compliance Certificate is required to be delivered to the Agent pursuant to Section 8.3.4.


 


GAAP shall mean generally accepted accounting
principles as are in effect from time to time, subject to the provisions of Section 1.3,
and applied on a consistent basis both as to classification of items and
amounts.


 


Governmental Acts shall have the meaning assigned to that
term in Section 2.9.8.


 


Guarantor shall mean each of the parties to this
Agreement which is designated as a “Guarantor” on the signature page hereof,
and each other Person which joins this Agreement as a Guarantor after the date
hereof pursuant to Section 11.18.


 


Guarantor Joinder shall mean a joinder by a Person as a
Guarantor under this Agreement, the Guaranty Agreement and the other Loan
Documents substantially in the form of Exhibit 1.1(G)(1).


 


Guaranty of any Person shall mean any obligation
of such Person guaranteeing or in effect guaranteeing any liability or
obligation of any other Person in any manner, whether directly or indirectly,
including any agreement to indemnify or hold harmless any other Person, any
performance bond or other suretyship arrangement and any other form of
assurance against loss, except endorsement of negotiable or other instruments
for deposit or collection in the ordinary course of business.


 


Guaranty Agreement shall mean the Guaranty and Suretyship
Agreement in substantially the form of Exhibit 1.1(G)(2) executed
and delivered by each of the Guarantors to the Agent for the benefit of the
Lenders.


 


Hedge Liabilities shall have the meaning assigned to that
term in the definition of Hedging Transaction.


 


Hedging Transaction shall mean any of the following
transactions by the Borrower or any of its Subsidiaries:  any rate swap transaction, basis swap,
forward rate transaction, commodity swap, commodity option, equity or equity
index swap, equity or equity


 


9

















 


index option, bond
option, interest rate option, foreign exchange transaction, cap transaction,
floor transaction, collar transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any other similar
transaction or any combination of the foregoing transactions, including any
Interest Rate Hedge or any Commodity Hedge. The liabilities of the Loan Parties
to the provider of any Lender-Provided Interest Rate Hedge and/or
Lender-Provided Commodity Hedge (the “Hedge Liabilities”) shall be “Obligations”
hereunder, guaranteed obligations under the Guaranty Agreement and secured
obligations under all other Loan Documents and otherwise treated as Obligations
for purposes of each of the other Loan Documents.  All Liens securing the Hedge Liabilities
provided by a Lender or an affiliate thereof shall be pari passu with the Liens
securing all other Obligations under this Agreement and the other Loan
Documents.


 


Historical Statements shall have the meaning assigned to that
term in Section 6.1.9(i).


 


Hydrocarbon Interests means all rights, titles and interests
in and to oil and gas leases, oil, gas and mineral leases, other Hydrocarbon
leases, mineral interests, mineral servitudes, overriding royalty interests,
royalty interests, net profits interests, production payment interests, and
other similar interests, but excluding coal.


 


Hydrocarbons means, collectively, oil, gas,
casinghead gas, drip gasoline, natural gasoline, condensate, distillate and all
other liquid or gaseous hydrocarbons and related minerals and all products
therefrom, in each case whether in a natural or a processed state, but
excluding coal.


 


Increased Leverage Ratio
Period shall have
the meaning assigned to that term in Section 8.2.17.


 


Increasing Lender shall have the meaning assigned to that
term in Section 2.10.1.


 


Indebtedness shall mean, as to any Person at any
time, any and all indebtedness, obligations or liabilities (whether matured or
unmatured, liquidated or unliquidated, direct or indirect, absolute or
contingent, or joint or several) of such Person for or in respect of:  (i) borrowed money, (ii) amounts
raised under or liabilities in respect of any note purchase or acceptance
credit facility, (iii) reimbursement obligations (contingent or otherwise)
under any letter of credit, Hedging Transaction, currency swap agreement,
interest rate swap, cap, collar or floor agreement or other interest rate
management device, (iv) any other transaction (including forward sale or
purchase agreements, deferred purchase price arrangement, title retention
device, capitalized leases and conditional sales agreements) having the
commercial effect of a borrowing of money entered into by such Person to
finance its operations or capital requirements (but not including trade
payables and accrued expenses incurred in the ordinary course of business which
are not represented by a promissory note or other evidence of indebtedness and
which are not more than thirty (30) days past due), and (v) any Guaranty
of Indebtedness for borrowed money.


 


10














 


Indemnity
shall mean the Indemnity Agreement in substantially the form of Exhibit 1.1(I)(1) among
the Lenders, the Agent and the Loan Parties relating to possible environmental
liabilities associated with any of the Property.


 


Ineligible Security
shall mean any security which may not be underwritten or dealt in by member
banks of the Federal Reserve System under Section 16 of the Banking Act of
1933 (12 U.S.C. Section 24, Seventh), as amended.


 


Insolvency Proceeding
shall mean, with respect to any Person, (a) a case, action or proceeding
with respect to such Person:  (i) before
any court or any other Official Body under any bankruptcy, insolvency,
reorganization or other similar Law now or hereafter in effect, or (ii) for
the appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator, conservator (or similar official) of any Loan Party or otherwise
relating to the liquidation, dissolution, winding-up or relief of such Person,
or (b) any general assignment for the benefit of creditors, composition,
marshaling of assets for creditors, or other, similar arrangement in respect of
such Person’s creditors generally or any substantial portion of its creditors;
undertaken under any Law.


 


Intercompany
Subordination Agreement shall mean a Subordination Agreement
among the Loan Parties in substantially the form of Exhibit 1.1(I)(2).


 


Interest Coverage Ratio
shall mean the ratio of Consolidated EBITDA to Consolidated Interest Expense,
determined as of the end of each fiscal quarter of the Borrower for the four
fiscal quarters then ended.


 


Interest Period
shall mean the period of time selected by the Borrower in connection with (and
to apply to) any election permitted hereunder by the Borrower to have Revolving
Credit Loans bear interest under the Euro-Rate Option.  Subject to the last sentence of this
definition, such period shall be one, two, three or six Months if Borrower
selects the Euro-Rate Option.  Such
Interest Period shall commence on the effective date of such Interest Rate
Option, which shall be:  (i) the
Borrowing Date if the Borrower is requesting new Loans, or (ii) the date
of renewal of or conversion to the Euro-Rate Option if the Borrower is renewing
or converting to the Euro-Rate Option applicable to outstanding Loans.  Notwithstanding the second sentence
hereof:  (A) any Interest Period
which would otherwise end on a date which is not a Business Day shall be
extended to the next succeeding Business Day unless such Business Day falls in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day, and (B) the Borrower shall not select,
convert to or renew an Interest Period for any portion of the Loans that would
end after the Expiration Date.


 


Interest Rate Hedge
shall mean an interest rate exchange, collar, cap, swap, adjustable strike cap,
adjustable strike corridor or similar agreements entered into by the Loan
Parties or their Subsidiaries in order to provide protection to, or minimize
the impact upon, the Borrower, the Guarantor and/or their Subsidiaries of
increasing floating rates of interest applicable to Indebtedness.


 


11

















 


Interest Rate Option
shall mean any Euro-Rate Option or Base Rate Option.


 


Interim Statements
shall have the meaning assigned to that term in Section 6.1.9(i).


 


Internal Revenue Code
shall mean the Internal Revenue Code of 1986, as the same may be amended or
supplemented from time to time, and any successor statute of similar import,
and the rules and regulations thereunder, as from time to time in effect.


 


IPO
shall have the meaning assigned to that term in Section 11.19.


 


IRH Provider
shall have the meaning assigned to that term in Section 9.2.5.2.


 


Issuing Lender
means PNC Bank, in its individual capacity as issuer of Letters of Credit
hereunder, National City Bank, and any other Lender that Borrower, Agent, and
such other Lender may agree from time to time to issue Letters of Credit
hereunder.  The Issuing Lender may, at
its option, arrange for any Letter of Credit to be issued by an Affiliate of
the Issuing Lender in which case such Affiliate shall be the Issuing Lender
with respect to such Letter of Credit.


 


Labor Contracts
shall mean all employment agreements, employment contracts, collective
bargaining agreements and other agreements among any Loan Party or Subsidiary
of a Loan Party and its employees.


 


Law
shall mean any law (including common law), constitution, statute, treaty,
regulation, rule, ordinance, opinion, release, ruling, order, injunction, writ,
decree, bond, judgment, authorization or approval, lien or award by or
settlement agreement with any Official Body.


 


Lender-Provided Commodity
Hedge shall mean a Commodity Hedge which is provided by any
Lender or any affiliate thereof and meets the following requirements:  such Commodity Hedge (i) is documented
in a standard International Swap Dealer Association Agreement, (ii) provides
for the method of calculating the reimbursable amount of the provider’s credit
exposure in a reasonable and customary manner, and (iii) is entered into
for hedging purposes.


 


Lender-Provided Interest
Rate Hedge shall mean an Interest Rate Hedge which is
provided by any Lender or any affiliate thereof and meets the following
requirements:  such Interest Rate Hedge (i) is
documented in a standard International Swap Dealer Association Agreement, (ii) provides
for the method of calculating the reimbursable amount of the provider’s credit
exposure in a reasonable and customary manner, and (iii) is entered into
for hedging (rather than speculative) purposes.


 


12

















 


Lenders
shall mean the financial institutions named on Schedule 1.1(B) and
their respective successors and assigns as permitted hereunder, each of which
is referred to herein as a Lender.


 


Letter of Credit
shall have the meaning assigned to that term in Section 2.9.1.


 


Letter of Credit
Borrowing shall have the meaning assigned to that term in Section 2.9.3.4.


 


Letter of Credit Fee
shall have the meaning assigned to that term in Section 2.9.2.


 


Letters of Credit
Outstanding shall mean at any time the sum of:  (i) the aggregate undrawn face amount of
outstanding Letters of Credit and (ii) the aggregate amount of all unpaid
and outstanding Reimbursement Obligations and Letter of Credit Borrowings.


 


Leverage Ratio
shall mean the ratio of Consolidated Total Indebtedness to Consolidated
EBITDA.  For purposes of calculating the
Leverage Ratio, Consolidated Total Indebtedness shall be determined as of the
end of each fiscal quarter of the Borrower and Consolidated EBITDA shall be
determined as of the end of each fiscal quarter of the Borrower for the four
fiscal quarters then ended.


 


Lien
shall mean any mortgage, deed of trust, pledge, lien, security interest, charge
or other encumbrance or security arrangement of any nature whatsoever, whether
voluntarily or involuntarily given, including any conditional sale or title
retention arrangement, and any assignment, deposit arrangement or lease
intended as, or having the effect of, security and any filed financing
statement or other notice of any of the foregoing (whether or not a lien or
other encumbrance is created or exists at the time of the filing).


 


LLC Interests
shall have the meaning assigned to that term in Section 6.1.3.


 


Loan Documents
shall mean this Agreement, the Agent’s Letter, the Guaranty Agreement, the
Notes, the Indemnity, the Mortgages, the Patent, Trademark and Copyright
Security Agreement, the Pledge Agreements, the Intercompany Subordination
Agreement, the Wexford Subordination Agreement, the Security Agreements and any
other instruments, certificates or documents delivered or contemplated to be
delivered hereunder or thereunder or in connection herewith or therewith, as
the same may be supplemented or amended from time to time in accordance
herewith or therewith, and Loan Document shall mean any of the Loan
Documents.


 


Loan Parties
shall mean the Borrower and the Guarantors.


 


Loan Request
shall have the meaning assigned to that term in Section 2.5.


 


13

















 


Loans
shall mean collectively and Loan shall mean separately all Revolving
Credit Loans or any Revolving Credit Loan.


 


Material Adverse Change
shall mean any set of circumstances or events which:  (a) has or could reasonably be expected
to have any material adverse effect whatsoever upon the validity or
enforceability of this Agreement or any other Loan Document, (b) is or
could reasonably be expected to be material and adverse to the business,
properties, assets, financial condition, results of operations or prospects of
the Loan Parties taken as a whole, (c) impairs materially or could
reasonably be expected to impair materially the ability of the Loan Parties
taken as a whole to duly and punctually pay or perform its Indebtedness, or (d) impairs
materially or could reasonably be expected to impair materially the ability of
the Agent or any of the Lenders, to the extent permitted, to enforce their
legal remedies pursuant to this Agreement or any other Loan Document.


 


Material Contracts
shall mean any individual lease, contract or agreement or, collectively, group
of leases, contracts and agreements, from the Borrower or any of its
Subsidiaries to a single operator or such operator’s Affiliates which
either:  (i) accounted for five
percent (5%) or more of the Consolidated EBITDA of the Borrower and its
Subsidiaries for the previous fiscal year, or (ii) is projected to account
for five percent (5%) or more of the Consolidated EBITDA of the Borrower and
its Subsidiaries for the current fiscal year.


 


Material Leases
shall mean all the leases set forth and described on Schedule 6.1.20.


 


Mining Title
shall mean fee simple title to surface and/or coal or an undivided interest in
fee simple title thereto or a leasehold interest in all or an undivided
interest in surface and/or coal together with all related real property,
easements, licenses, privileges, rights and appurtenances as are necessary to
mine, remove, process and transport coal in the manner presently operated.


 


Month,
with respect to an Interest Period under the Euro-Rate Option, shall mean the
interval between the days in consecutive calendar months numerically
corresponding to the first day of such Interest Period.  If any Euro-Rate Interest Period begins on a
day of a calendar month for which there is no numerically corresponding day in
the month in which such Interest Period is to end, the final month of such
Interest Period shall be deemed to end on the last Business Day of such final
month.


 


Mortgages
shall mean collectively, and Mortgage shall mean each separately, the
Mortgages in substantially the form of Exhibit 1.1(M) with
respect to the Property executed and delivered by any Loan Party to the Agent
for the benefit of the Lenders.


 


Multiemployer Plan
shall mean any employee benefit plan which is a “multiemployer plan” within the
meaning of Section 4001(a)(3) of ERISA and to which the Borrower or
any member of the ERISA Group is then making or accruing an obligation to make
contributions or, within the preceding five (5) Plan years, has made or
had an obligation to make such contributions.


 


14

















 


Multiple Employer Plan
shall mean a Plan which has two (2) or more contributing sponsors
(including the Borrower or any member of the ERISA Group) at least two (2) of
whom are not under common control, as such a plan is described in
Sections 4063 and 4064 of ERISA.


 


New Lender shall have the meaning assigned to that term in Section 2.10.1.


 


Nonconsenting Lender shall mean any Lender who does not agree to a
consent, waiver or amendment to the Loan Documents as requested by the Borrower
or the Agent (which consent, waiver or amendment has been approved by the
Required Lenders) and the consent, waiver or amendment of such Lender is
required in accordance with the terms of Section 11.1 [Modifications,
Amendments or Waivers].


 


Notes
shall mean the Revolving Credit Notes.


 


Notices
shall have the meaning assigned to that term in Section 11.6.


 


Obligation
shall mean any obligation or liability of any of the Loan Parties to the Agent
or any of the Lenders, howsoever created, arising or evidenced, whether direct
or indirect, absolute or contingent, now or hereafter existing, or due or to
become due, under or in connection with this Agreement, the Notes,  the Letters of Credit, the Agent’s Letter or any other Loan
Document or under any Lender-Provided Interest Rate Hedge or Lender-Provided
Commodity Hedge.  Obligations shall
include the liabilities to any Lender or any affiliate thereof under any Lender-Provided
Interest Rate Hedge and Lender-Provided Commodity Hedge but shall not include
the liabilities to other Persons under any other Interest Rate Hedge or
Commodity Hedge.


 


Official Body
shall mean any national, federal, state, local or other government or political
subdivision or any agency, authority, board, bureau, central bank, commission,
department or instrumentality of either, or any court, tribunal, grand jury or
arbitrator, in each case whether foreign or domestic.


 


Order
shall have the meaning assigned to that term in Section 2.9.9.


 


Participation Advance
shall mean, with respect to any Lender, such Lender’s payment in respect of its
participation in a Letter of Credit Borrowing according to its Ratable Share
pursuant to Section 2.9.3.4.


 


Partnership Interests
shall have the meaning assigned to that term in Section 6.1.3.


 


Patent, Trademark and
Copyright Security Agreement shall mean the Patent, Trademark
and Copyright Security Agreements in substantially the form of Exhibit 1.1(P)(1) to
be executed and delivered by the Borrower and Guarantors to the Agent for the
benefit of the Lenders in the event the Borrower or the Guarantor acquires any
patents, trademarks or copyrights.


 


15

















 


PBGC
shall mean the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA or any successor.


 


Permitted Acquisitions
shall have the meaning assigned to that term in Section 8.2.6.


 


Permitted
Investments shall mean:


 


(i)            direct obligations of
the United States of America or any agency or instrumentality thereof or
obligations backed by the full faith and credit of the United States of America
maturing in twelve (12) months or less from the date of acquisition;


 


(ii)           commercial paper
maturing in 180 days or less rated not lower than A-1, by Standard &
Poor’s or P-1 by Moody’s Investors Service, Inc. on the date of
acquisition;


 


(iii)          demand deposits, time
deposits or certificates of deposit maturing within one year in commercial
banks whose obligations are rated A-1, A or the equivalent or better by
Standard & Poor’s on the date of acquisition; and


 


(iv)          shares of money market
mutual or similar funds which invest exclusively in assets satisfying the
requirements of clauses (i) through (iii) of this definition, except
that with respect to the maturities of the assets included in such funds the
requirements of clauses (i) through (iii) shall not be applied to the
individual assets included in such funds but to the weighted-average maturity
of all assets included in such funds.


 


Permitted
Liens shall mean:


 


(i)            Liens for taxes,
assessments, or similar charges, incurred in the ordinary course of business
and which are not yet due and payable;


 


(ii)           Pledges or deposits
made in the ordinary course of business to secure payment of workmen’s
compensation, or to participate in any fund in connection with workmen’s
compensation, unemployment insurance, old-age pensions or other social security
programs;


 


(iii)          Liens of mechanics,
materialmen, warehousemen, carriers, or other like Liens, securing obligations
incurred in the ordinary course of business that are not yet due and payable
and Liens of landlords securing obligations to pay lease payments that are not
yet due and payable or in default;


 


(iv)          Pledges or deposits made
in the ordinary course of business to secure performance of bids, tenders,
contracts (other than for the repayment of borrowed money) or leases, not in
excess of the aggregate amount due thereunder, or to secure statutory
obligations, or surety, appeal, indemnity, performance or other similar bonds
required in the ordinary course of business;


 


16

















 


(v)           Encumbrances consisting
of zoning restrictions, easements or other restrictions on the use of real
property, none of which materially impairs the use of such property or the
value thereof, and none of which is violated in any material respect by
existing or proposed structures or land use;


 


(vi)          Liens in favor of the
Agent for the benefit of the Lenders securing the Obligations including
liabilities under any Lender-Provided Interest Rate Hedge and Lender-Provided
Commodity Hedge;


 


(vii)         Liens on property leased
by any Loan Party or Subsidiary of a Loan Party under operating leases
permitted in Section 8.2.16 securing obligations of such Loan Party or
Subsidiary to the lessor under such leases;


 


(viii)        Any Lien existing on the
date of this Agreement and described on Schedule 1.1(P), provided
that the principal amount secured thereby is not hereafter increased, and no
additional assets become subject to such Lien;


 


(ix)           Purchase Money Security
Interests and capital leases, provided that the aggregate amount of
loans and deferred payments secured by such Purchase Money Security Interests
and capital leases shall not exceed $12,500,000 (excluding for the purpose of
this computation any loans or deferred payments secured by Liens described on Schedule
1.1(P)); and


 


(x)            The following, (A) if
the validity or amount thereof is being contested in good faith by appropriate
and lawful proceedings diligently conducted so long as levy and execution
thereon have been stayed and continue to be stayed or (B) if a final
judgment is entered and such nonappealable judgment is discharged within thirty
(30) days of entry, and they do not, in the aggregate, materially impair the
ability of any Loan Party to perform its Obligations hereunder or under the
other Loan Documents:


 


(1)           Claims or Liens for
taxes, assessments or charges due and payable and subject to interest or penalty,
provided that the applicable Loan Party maintains such reserves or other
appropriate provisions as shall be required by GAAP and pays all such taxes,
assessments or charges forthwith upon the commencement of proceedings to
foreclose any such Lien;


 


(2)           Claims, Liens or
encumbrances upon, and defects of title to, real or personal property,
including any attachment of personal or real property or other legal process
prior to adjudication of a dispute on the merits;


 


(3)           Claims or Liens of
mechanics, materialmen, warehousemen, carriers, or other statutory
nonconsensual Liens; or


 


(4)           Liens resulting from
final judgments or orders described in Section 9.1.6.


 


17

















 


Person
shall mean any individual, corporation, partnership, limited liability company,
association, joint-stock company, trust, unincorporated organization, joint
venture, government or political subdivision or agency thereof, or any other
entity.


 


Plan
shall mean at any time an employee pension benefit plan (including a Multiple
Employer Plan, but not a Multiemployer Plan) which is covered by Title IV of
ERISA or is subject to the minimum funding standards under Section 412 of
the Internal Revenue Code and either:  (i) is
maintained by any member of the ERISA Group for employees of any member of the
ERISA Group or (ii) has at any time within the preceding five (5) years
been maintained by any entity which was at such time a member of the ERISA
Group for employees of any entity which was at such time a member of the ERISA
Group.


 


Pledge Agreements
shall mean collectively, and Pledge Agreement shall mean each
separately, the Pledge Agreements in substantially the form of Exhibit 1.1(P)(2) and
Exhibit 1.1(P)(3) executed and delivered by the Borrower, the
Guarantors, and each Person, subject to the provisions of Section 8.2.9
[Subsidiaries, Partnerships and Joint Ventures], who owns equity interests in
the Pledged Collateral, in each case to the Agent for the benefit of the
Lenders.


 


Pledge Agreement
(Borrower) shall mean the Pledge Agreement in substantially
the form of Exhibit 1.1(P)(3) executed and delivered by each
Person who owns equity interests in the Pledged Collateral of the Borrower, to
the Agent for the benefit of the Lenders.


 


Pledged Collateral
shall mean the property of the Loan Parties in which security interests are to
be granted under the Pledge Agreements.


 


PNC Bank
shall mean PNC Bank, National Association, its successors and assigns.


 


PNC Equipment Financing
shall mean collectively:  (i) that
certain Term Note whereby CAM Mining LLC promises to pay to PNC Bank $416,887,
dated as of July 25, 2006, which financing was used to purchase a certain
piece of mining equipment and (ii) that certain Term Note whereby CAM
Mining LLC promises to pay to PNC Bank $1,600,214, dated as of August 10,
2006, which financing was used to purchase a certain piece of mining equipment.


 


Potential Default
shall mean any event or condition which with notice, passage of time or a
determination by the Agent or the Required Lenders, or any combination of the
foregoing, would constitute an Event of Default.


 


Principal Office
shall mean the main banking office of the Agent in Pittsburgh, Pennsylvania.


 


Prior Security Interest
shall mean a valid and enforceable perfected first-priority security interest
under the Uniform Commercial Code in the UCC Collateral and the Pledged
Collateral which is subject only to Liens: 
(i) for taxes not yet due and payable to the 


 


18

















 


extent such prospective
tax payments are given priority by statute, (ii) Purchase Money Security
Interests as permitted hereunder or (iii) arising under mining leases to
secure the payments due under such leases.


 


Prohibited Transaction
shall mean any prohibited transaction as defined in Section 4975 of the
Internal Revenue Code or Section 406 of ERISA for which neither an
individual nor a class exemption has been issued by the United States
Department of Labor.


 


Property
shall mean all real property, both owned and leased, of any Loan Party or
Subsidiary of a Loan Party.


 


Purchase Money Security
Interest shall mean Liens upon tangible personal property
securing loans to any Loan Party or Subsidiary of a Loan Party or deferred
payments by such Loan Party or Subsidiary for the purchase of such tangible
personal property.


 


Purchasing Lender
shall mean a Lender which becomes a party to this Agreement by executing an
Assignment and Assumption Agreement.


 


Ratable Share
shall mean the proportion that a Lender’s Commitment bears to the Commitments
of all of the Lenders.


 


Regulated Substances
shall mean, without limitation, any substance, material or waste, regardless of
its form or nature, defined under Environmental Laws as a “hazardous substance,”
“pollutant,” “pollution,” “contaminant,” “hazardous or toxic substance,” “extremely
hazardous substance,” “toxic chemical,” “toxic substance,” “toxic waste,” “hazardous
waste,” “special handling waste,” “industrial waste,” “residual waste,” “solid
waste,” “municipal waste,” “mixed waste,” “infectious waste,” “chemotherapeutic
waste,” “medical waste,” or “regulated substance” or any other material,
substance or waste, regardless of its form or nature, which otherwise is
regulated by Environmental Laws.


 


Regulation U
shall mean Regulation U, T or X as promulgated by the Board of Governors of the
Federal Reserve System, as amended from time to time.


 


Regulations
shall have the meaning assigned to that term in Section 11.17.1.


 


Reimbursement Obligation
shall have the meaning assigned to that term in Section 2.9.3.2.


 


Reportable Event
shall mean a reportable event described in Section 4043 of ERISA and
regulations thereunder with respect to a Plan or Multiemployer Plan.


 


Required Environmental
Notices shall mean all notices, reports, plans, forms or
other filings which pursuant to Environmental Laws, Required Environmental
Permits or at the request or direction of an Official Body either must be
submitted to an Official Body or which otherwise must be maintained.


 


19














 


Required Environmental
Permits shall
mean all permits, licenses, bonds, consents, programs, approvals or
authorizations required under Environmental Laws to own, occupy or maintain the
Property or which otherwise are required for the operations and business
activities of the Borrower or Guarantors.


 


Required
Lenders shall
mean


 


(i)            if there are no Loans, Reimbursement
Obligations or Letter of Credit Borrowings outstanding, Lenders whose
Commitments aggregate greater than 50% of the Commitments of all of the
Lenders, or


 


(ii)           if there are Loans, Reimbursement
Obligations, or Letter of Credit Borrowings outstanding, any Lender or group of
Lenders if the sum of the Loans, Reimbursement Obligations and Letter of Credit
Borrowings of such Lenders then outstanding aggregates greater than 50% of the
total principal amount of all of the Loans, Reimbursement Obligations and
Letter of Credit Borrowings then outstanding. 
Reimbursement Obligations and Letter of Credit Borrowings shall be
deemed, for purposes of this definition, to be in favor of the Agent and not a
participating Lender if such Lender has not made its Participation Advance in
respect thereof and shall be deemed to be in favor of such Lender to the extent
of its Participation Advance if it has made its Participation Advance in
respect thereof.


 


Revolving Credit Base
Rate Option shall
mean the option of the Borrower to have Revolving Credit Loans bear interest at
the rate and under the terms and conditions set forth in Section 4.1.1(i).


 


Revolving Credit Commitment shall mean, as to any Lender at any
time, the amount initially set forth opposite its name on Schedule 1.1(B) in
the column labeled “Amount of Commitment for Revolving Credit Loans,” and
thereafter on Schedule I to the most recent Assignment and Assumption Agreement
or a revised Schedule 1.1(B) that takes into account any increase
in the Revolving Credit Commitments made pursuant to Section 2.10.1, and Revolving
Credit Commitments shall mean the aggregate Revolving Credit Commitments of
all of the Lenders.


 


Revolving Credit
Commitment Increase Date shall have the meaning assigned to that term in Section 2.10.1(ii).


 


Revolving Credit
Euro-Rate Option
shall mean the option of the Borrower to have Revolving Credit Loans bear
interest at the rate and under the terms and conditions set forth in Section 4.1.1(ii).


 


Revolving Credit Loans shall mean collectively and Revolving
Credit Loan shall mean separately all Revolving Credit Loans or any
Revolving Credit Loan made by the Lenders or one of the Lenders to the Borrower
pursuant to Section 2.1 or 2.9.3.


 


Revolving Credit Notes shall mean collectively and Revolving
Credit Note shall mean separately all the Revolving Credit Notes of the
Borrower substantially in the form of 


 


20

















 


Exhibit 1.1(R) evidencing the Revolving Credit
Loans together with all amendments, extensions, renewals, replacements,
refinancings or refundings thereof in whole or in part.


 


Revolving Facility Usage shall mean at any time the sum of the
Revolving Credit Loans outstanding and the Letters of Credit Outstanding.


 


SEC shall mean the Securities and Exchange
Commission or any governmental agencies substituted therefor.


 


Section 20
Subsidiary shall
mean the Subsidiary of the bank holding company controlling any Lender, which
Subsidiary has been granted authority by the Federal Reserve Board to
underwrite and deal in certain Ineligible Securities.


 


Security Agreements shall mean collectively, and Security
Agreement shall mean each separately, the Security Agreements in
substantially the form of Exhibit 1.1(S)(1) executed and
delivered by the Borrower, and in substantially the form of Exhibit 1.1(S)(2) executed
and delivered by the Guarantors, in each case to the Agent for the benefit of
the Lenders.


 


Security Documents shall mean security agreements, pledge
agreements, mortgages, deeds of trust and all other documents, instruments, and
agreements sufficient to provide the Agent for the benefit of the Lenders with
a first priority perfected Lien, subject only to Permitted Liens, on all
property of the Loan Parties other than Excluded Property.


 


Standard & Poor’s shall mean Standard & Poor’s
Ratings Services, a division of The McGraw-Hill Companies, Inc.


 


Subsidiary of any Person at any time shall
mean:  (i) any corporation or trust
of which 50% or more (by number of shares or number of votes) of the
outstanding capital stock or shares of beneficial interest normally entitled to
vote for the election of one or more directors or trustees (regardless of any
contingency which does or may suspend or dilute the voting rights) is at such
time owned directly or indirectly by such Person or one or more of such Person’s
Subsidiaries, (ii) any partnership of which such Person is a general
partner or of which 50% or more of the partnership interests is at the time
directly or indirectly owned by such Person or one or more of such Person’s
Subsidiaries, (iii) any limited liability company of which such Person is
a member or of which 50% or more of the limited liability company interests is
at the time directly or indirectly owned by such Person or one or more of such
Person’s Subsidiaries or (iv) any corporation, trust, partnership, limited
liability company or other entity which is controlled or capable of being
controlled by such Person or one or more of such Person’s Subsidiaries.


 


Subsidiary Shares shall have the meaning assigned to that
term in Section 6.1.3.


 


Tax Distributions shall mean dividends and distributions
made by the Borrower to its members in an amount equal to 30% of Consolidated
Net Income for the fiscal 


 


21

















 


quarter
immediately preceding the fiscal quarter in which such payment is made, as
adjusted for prior fiscal quarters in any such fiscal year.  By way of example, please see the following:


 


	
   

  	
   

  	
  Quarterly 

  Consolidated 

  Net Income

  	
   

  	
  Total 

  Consolidated 

  Net Income

  	
   

  	
  Tax Distributions: 

  cumulative 

  limitation and 

  cumulative 

  available

  	
   

  	
  Actual Cumulative 

  Tax Distributions

   Paid

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1st Quarter

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
  Cumulative limitation and cumulative available
  equals $300,000

  	
   

  	
  $200,000 paid in the quarter of the $300,000
  available

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2nd Quarter

  	
   

  	
  $

  	
  2,000,000

  	
   

  	
  $

  	
  3,000,000

  	
   

  	
  Cumulative limitation equals $900,000

   

  Cumulative available equals $900,000 less actual
  amounts paid in the fiscal year to date period

  	
   

  	
  $700,000 paid to date in the fiscal year of the
  $900,000 available ($200,000 from the 1st quarter and
  $500,000 paid in the 2nd quarter)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3rd Quarter

  	
   

  	
  $

  	
  (1,000,000

  	
  )

  	
  $

  	
  2,000,000

  	
   

  	
  Cumulative limitation
  equals $600,000

   

  Cumulative available
  equals $600,000 less actual amounts paid in the fiscal year to date period

  	
   

  	
  $700,000 paid to date
  in the fiscal year

   

  No incremental Tax
  Distributions permitted in this quarter due to the actual cumulative tax
  distributions paid of $700,000 exceeding the cumulative limitation of
  $600,000.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4th Quarter

  	
   

  	
  $

  	
  2,000,000

  	
   

  	
  $

  	
  4,000,000

  	
   

  	
  Cumulative limitation equals $1,200,000

   

  Cumulative available equals $1,200,000 less actual
  amounts paid in the fiscal year to date period

  	
   

  	
  $1,200,000 paid to date in the fiscal year ($200,000
  from the 1st quarter and $500,000 paid in the 2nd quarter and
  $500,000 paid in the 4th quarter)

  



 


22

















 


Transferor Lender shall mean the selling Lender pursuant
to an Assignment and Assumption Agreement.


 


UCC Collateral shall mean the property of the Loan
Parties in which security interests are granted under the Security Agreement.


 


USA Patriot Act shall mean the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, Public Law 107-56, as the same has been, or shall
hereafter be, renewed, extended, amended or replaced.


 


Website Posting shall have the meaning assigned to that
term in Section 11.6.


 


Wexford Subordination
Agreement shall
mean a Subordination Agreement among Wexford, the Loan Parties, and the Agent
in substantially the form of Exhibit 1.1(W).


 


Withholding Certificate shall have the meaning assigned to that
term in Section 11.17.1.


 


1.2                   Construction.


 


Unless the context
of this Agreement otherwise clearly requires, the following rules of
construction shall apply to this Agreement and each of the other Loan
Documents:


 


1.2.1        Number;
Inclusion.


 


references to the plural
include the singular, the plural, the part and the whole; “or” has the
inclusive meaning represented by the phrase “and/or,” and “including” has the
meaning represented by the phrase “including without limitation”;


 


1.2.2        Determination.


 


references to “determination”
of or by the Agent or the Lenders shall be deemed to include good-faith
estimates by the Agent or the Lenders (in the case of quantitative
determinations) and good-faith beliefs by the Agent or the Lenders (in the case
of qualitative determinations) and such determination shall be conclusive
absent manifest error;


 


23

















 


1.2.3        Agent’s
Discretion and Consent.


 


whenever the Agent or the
Lenders are granted the right herein to act in its or their sole discretion or
to grant or withhold consent such right shall be exercised in good faith;


 


1.2.4        Documents
Taken as a Whole.


 


the words “hereof,” “herein,”
“hereunder,” “hereto” and similar terms in this Agreement or any other Loan
Document refer to this Agreement or such other Loan Document as a whole and not
to any particular provision of this Agreement or such other Loan Document;


 


1.2.5        Headings.


 


the section and other
headings contained in this Agreement or such other Loan Document and the Table
of Contents (if any), preceding this Agreement or such other Loan Document are
for reference purposes only and shall not control or affect the construction of
this Agreement or such other Loan Document or the interpretation thereof in any
respect;


 


1.2.6        Implied
References to this Agreement.


 


article, section,
subsection, clause, schedule and exhibit references are to this Agreement or
other Loan Document, as the case may be, unless otherwise specified;


 


1.2.7        Persons.


 


reference to any Person
includes such Person’s successors and assigns but, if applicable, only if such
successors and assigns are permitted by this Agreement or such other Loan
Document, as the case may be, and reference to a Person in a particular
capacity excludes such Person in any other capacity;


 


1.2.8        Modifications
to Documents.


 


reference to any
agreement (including this Agreement and any other Loan Document together with
the schedules and exhibits hereto or thereto), document or instrument means
such agreement, document or instrument as amended, modified, replaced,
substituted for, superseded or restated;


 


1.2.9        From,
To and Through.


 


relative to the
determination of any period of time, “from” means “from and including,” “to”
means “to but excluding,” and “through” means “through and including”; and


 


1.2.10      Shall;
Will.


 


references to “shall” and
“will” are intended to have the same meaning.


 


24

















 


1.3                   Accounting
Principles.


 


Except as
otherwise provided in this Agreement, all computations and determinations as to
accounting or financial matters and all financial statements to be delivered
pursuant to this Agreement shall be made and prepared in accordance with GAAP
(including principles of consolidation where appropriate), and all accounting
or financial terms shall have the meanings ascribed to such terms by GAAP; provided,
however, that all accounting terms used in Section 8.2 [Negative
Covenants] (and all defined terms used in the definition of any accounting term
used in Section 8.2) shall have the meaning given to such terms (and
defined terms) under GAAP as in effect on the date hereof applied on a basis
consistent with those used in preparing the Annual Statements referred to in Section 6.1.9(i) [Historical
Statements].  In the event of any change
after the date hereof in GAAP, and if such change would result in the inability
to determine compliance with the financial covenants set forth in Section 8.2
based upon the Borrower’s regularly prepared financial statements by reason of
the preceding sentence, then the parties hereto agree to endeavor, in good
faith, to agree upon an amendment to this Agreement that would adjust such
financial covenants in a manner that would not affect the substance thereof,
but would allow compliance therewith to be determined in accordance with the
Borrower’s financial statements at that time.


 


2.     REVOLVING CREDIT FACILITY


 


2.1                   Revolving
Credit Commitments.


 


Subject to the
terms and conditions hereof and relying upon the representations and warranties
herein set forth, each Lender severally agrees to make Revolving Credit Loans
to the Borrower at any time or from time to time on or after the date hereof to
the Expiration Date, provided that after giving effect to such Loan the
aggregate amount of Revolving Credit Loans from such Lender shall not exceed
such Lender’s Revolving Credit Commitment minus such Lender’s Ratable Share of
the Letters of Credit Outstanding. 
Within such limits of time and amount and subject to the other
provisions of this Agreement, the Borrower may borrow, repay and reborrow
pursuant to this Section 2.1.  The
aggregate amount of the Revolving Credit Commitments on the Closing Date is
$125,000,000.  Revolving Credit Loans
shall be available to the Borrower solely for the purposes set forth in Section 8.1.10.


 


2.2                   Nature
of Lenders’ Obligations with Respect to Revolving Credit Loans.


 


Each Lender shall
be obligated to participate in each request for Revolving Credit Loans pursuant
to Section 2.5 [Revolving Credit Loan Requests] in accordance with its
Ratable Share.  The aggregate of each
Lender’s Revolving Credit Loans outstanding hereunder to the Borrower at any
time shall never exceed its Revolving Credit Commitment minus its Ratable Share
of the Letters of Credit Outstanding.  The obligations of each Lender hereunder are
several.  The failure of any Lender to
perform its obligations hereunder shall not affect the Obligations of the
Borrower to any other party nor shall any other party be liable for the failure
of such Lender to perform its obligations hereunder.  The Lenders shall have no obligation to make
Revolving Credit Loans hereunder on or after the Expiration Date.


 


25














 


2.3                   Commitment
Fees.


 


Accruing from the
date hereof until the Expiration Date, the Borrower agrees to pay to the Agent
for the account of each Lender, as consideration for such Lender’s Revolving
Credit Commitment hereunder, a nonrefundable commitment fee (the “Commitment
Fee”) equal to the Applicable Commitment Fee Rate (computed on the basis of a
year of 360 days and actual days elapsed) on the average daily difference
between the amount of:  (i) such
Lender’s Revolving Credit Commitment as the same may be constituted from time
to time and (ii) the sum of such Lender’s Revolving Credit Loans
outstanding plus its Ratable Share of Letters of Credit Outstanding.  All Commitment Fees shall be payable in
arrears on the first day of each October, January, April and July, after
the date hereof and on the Expiration Date or upon acceleration of the Loans.


 


2.4                   Intentionally
Deleted.


 


2.5                   Revolving
Credit Loan Requests.


 


Except as
otherwise provided herein, the Borrower may from time to time prior to the
Expiration Date request the Lenders to make Revolving Credit Loans, or renew or
convert the Interest Rate Option applicable to existing Revolving Credit Loans
pursuant to Section 4.2 [Interest Periods], by delivering to the Agent,
not later than 12:00 noon, Pittsburgh time, (i) three (3) Business
Days prior to the proposed Borrowing Date with respect to the making of
Revolving Credit Loans to which the Euro-Rate Option applies or the conversion
to or the renewal of the Euro-Rate Option for any Loans; and (ii) on the proposed
Borrowing Date with respect to the making of a Revolving Credit Loan to which
the Base Rate Option applies or the last day of the preceding Interest Period
with respect to the conversion to the Base Rate Option for any Loan, of a duly
completed request therefor substantially in the form of Exhibit 2.5
or a request by telephone immediately confirmed in writing by letter, facsimile
or telex in such form (each, a “Loan Request”), it being understood that the
Agent may rely on the authority of any individual making such a telephonic
request without the necessity of receipt of such written confirmation.  Each Loan Request shall be irrevocable and
shall specify:  (i) the proposed
Borrowing Date; (ii) the aggregate amount of the proposed Loans comprising
each Borrowing Tranche, which shall be in integral multiples of $2,000,000 and
not less than $2,000,000 for each Borrowing Tranche to which the Euro-Rate
Option applies and not less than the lesser of $100,000 or the maximum amount
available for Borrowing Tranches to which the Base Rate Option applies; (iii) whether
the Euro-Rate Option or Base Rate Option shall apply to the proposed Loans
comprising the applicable Borrowing Tranche; and (iv) in the case of a
Borrowing Tranche to which the Euro-Rate Option applies, an appropriate
Interest Period for the Loans comprising such Borrowing Tranche.


 


2.6                   Making
Revolving Credit Loans.


 


The Agent shall,
promptly after receipt by it of a Loan Request pursuant to Section 2.5
[Revolving Credit Loan Requests], notify the Lenders of its receipt of such
Loan Request specifying:  (i) the
proposed Borrowing Date and the time and method of disbursement of the
Revolving Credit Loans requested thereby; (ii) the amount and type of each
such 


 


26

















 


Revolving Credit Loan and the applicable Interest Period (if any); and (iii) the
apportionment among the Lenders of such Revolving Credit Loans as determined by
the Agent in accordance with Section 2.2 
[Nature of Lenders’ Obligations]. 
Each Lender shall remit the principal amount of each Revolving Credit
Loan to the Agent such that the Agent is able to, and the Agent shall, to the
extent the Lenders have made funds available to it for such purpose and subject
to Section 7.2 [Each Additional Loan], fund such Revolving Credit Loans to
the Borrower in U.S. Dollars and immediately available funds at the Principal
Office prior to 2:00 p.m., Pittsburgh time, on the applicable Borrowing
Date, provided that if any Lender fails to remit such funds to the Agent
in a timely manner, the Agent may elect in its sole discretion to fund with its
own funds the Revolving Credit Loans of such Lender on such Borrowing Date, and
such Lender shall be subject to the repayment obligation in Section 10.16
[Availability of Funds].


 


2.7                   Revolving
Credit Notes.


 


The Obligation of
the Borrower to repay the aggregate unpaid principal amount of the Revolving
Credit Loans made to it by each Lender, together with interest thereon, shall
be evidenced by a Revolving Credit Note dated the Closing Date payable to the
order of such Lender in a face amount equal to the Revolving Credit Commitment
of such Lender.


 


2.8                   Use
of Proceeds.


 


The proceeds of
the Revolving Credit Loans shall be used in accordance with Section 8.1.10
[Use of Proceeds].


 


2.9                   Letter
of Credit Subfacility.


 


2.9.1        Issuance
of Letters of Credit.


 


Borrower may request the
issuance of a letter of credit (each a “Letter of Credit”) on behalf of itself
or another Loan Party by delivering or having such other Loan Party deliver to
the Issuing Lender (with a copy to the Agent) a completed application and
agreement for letters of credit in such form as the Issuing Lender may specify
from time to time by no later than 10:00 a.m., Pittsburgh time, at least
three (3) Business Days, or such shorter period as may be agreed to by the
Issuing Lender, in advance of the proposed date of issuance.  Promptly after receipt of any Letter of
Credit application, the Issuing Lender shall confirm with the Agent (by
telephone or in writing) that the Agent has received a copy of such Letter of
Credit application and, if not, such Issuing Lender will provide the Agent with
a copy thereof.  Borrower shall be bound
by the terms of all such applications and agreements regardless whether delivered
to Issuing Lender by Borrower or another Loan Party and, in the event that such
application and agreement is delivered by any other Loan Party, Borrower shall
be jointly and severally obligated thereon with such Loan Party.  Subject to the terms and conditions hereof
and in reliance on the agreements of the other Lenders set forth in this Section 2.9,
the Issuing Lender will issue a Letter of Credit provided that each Letter of
Credit shall:  (A) have a maximum
maturity of twelve (12) months from the date of issuance, and (B) in no
event expire later than ten (10) Business Days prior to the Expiration
Date and providing that in no event shall: 
(i) the Letters of 


 


27

















 


Credit Outstanding
exceed, at any one time, $25,000,000 or (ii) the Revolving Facility Usage
exceed, at any one time, the Revolving Credit Commitments.


 


2.9.2        Letter
of Credit Fees.


 


The Borrower shall
pay:  (i) to the Agent for the
ratable account of the Lenders a fee (the “Letter of Credit Fee”) equal to the
Applicable Letter of Credit Fee Rate, and (ii) to any Issuing Lender for
its own account a fronting fee equal to 0.15%
per annum (in each case, computed on the basis of a year of 360 days
and actual days elapsed), which fees shall be computed on the daily average
Letters of Credit Outstanding and shall be payable quarterly in arrears
commencing with the first day of each October, January, April and July following
issuance of each Letter of Credit and on the Expiration Date.  The Borrower shall also pay to the Issuing
Lender for the Issuing Lender’s sole account the Issuing Lender’s then in
effect customary fees and administrative expenses payable with respect to the
Letters of Credit as the Issuing Lender may generally charge or incur from time
to time in connection with the issuance, maintenance, modification (if any),
assignment or transfer (if any),  negotiation,
and administration of Letters of Credit. 
Notwithstanding anything to the contrary contained herein, the
Applicable Letter of Credit Fee Rate as set forth on Schedule 1.1(A) during
the period from the Closing Date through the Financials Delivery Date for the March 31,
2007 Compliance Certificate, shall not be less than the percentage margins
applicable to Level III as indicated in the pricing grid on Schedule 1.1(A).


 


2.9.3        Disbursements,
Reimbursement.


 


2.9.3.1     Immediately
upon the Issuance of each Letter of Credit, each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the Issuing
Lender a participation in such Letter of Credit and each drawing thereunder in
an amount equal to such Lender’s Ratable Share of the maximum amount available
to be drawn under such Letter of Credit and the amount of such drawing,
respectively.


 


2.9.3.2     In
the event of any request for a drawing under a Letter of Credit by the
beneficiary or transferee thereof, the Issuing Lender will promptly notify the
Borrower and the Agent thereof.  Provided
that it shall have received such notice, the Borrower shall reimburse (such
obligation to reimburse the Issuing Lender shall sometimes be referred to as a “Reimbursement
Obligation”) the Issuing Lender through the Agent prior to 12:00 noon,
Pittsburgh time on each date that an amount is paid by the Issuing Lender under
any Letter of Credit (each such date, an “Drawing Date”) in an amount equal to
the amount so paid by the Issuing Lender. 
In the event the Borrower fails to reimburse the Issuing Lender (through
the Agent) for the full amount of any drawing under any Letter of Credit by
12:00 noon, Pittsburgh time, on the Drawing Date, the Agent will promptly
notify each Lender thereof, and the Borrower shall be deemed to have requested
that Revolving Credit Loans in the amount of the unreimbursed drawing be made
by the Lenders under the Base Rate Option to be disbursed on the Drawing Date
under such Letter of Credit, subject to the amount of the unutilized portion of
the Revolving Credit Commitment and subject to the conditions set forth in Section 7.2
[Each Additional Loan] other than any notice requirements.  Any notice given by the Agent or the Issuing
Lender pursuant to this Section 2.9.3.2 may be oral if immediately
confirmed in writing; 


 


28

















 


provided that the lack of such an immediate confirmation shall
not affect the conclusiveness or binding effect of such notice.


 


2.9.3.3     Each
Lender shall upon any notice pursuant to Section 2.9.3.2 make available to
the Agent for the account of the Issuing Lender an amount in immediately
available funds equal to its Ratable Share of the amount of the drawing,
whereupon the participating Lenders shall (subject to Section 2.9.3.4)
each be deemed to have made a Revolving Credit Loan under the Base Rate Option
to the Borrower in that amount.  If any
Lender so notified fails to make available to the Agent for the account of the
Issuing Lender the amount of such Lender’s Ratable Share of such amount by no
later than 2:00 p.m., Pittsburgh time on the Drawing Date, then interest
shall accrue on such Lender’s obligation to make such payment, from the Drawing
Date to the date on which such Lender makes such payment:  (i) at a rate per annum equal to the
Federal Funds Effective Rate during the first three (3) days following the
Drawing Date and (ii) at a rate per annum equal to the rate applicable to
Loans under the Revolving Credit Base Rate Option on and after the fourth day
following the Drawing Date.  The Agent
and the Issuing Lender will promptly give notice (as described above), but
failure of the Agent or the Issuing Lender to give any such notice on the
Drawing Date or in sufficient time to enable any Lender to effect such payment
on such date shall not relieve such Lender from its obligation under this Section 2.9.3.3.


 


2.9.3.4     With
respect to any unreimbursed drawing that is not converted into Revolving Credit
Loans under the Base Rate Option to the Borrower in whole or in part as
contemplated by Section 2.9.3.2, because of the Borrower’s failure to
satisfy the conditions set forth in Section 7.2 [Each Additional Loan]
other than any notice requirements or for any other reason, the Borrower shall
be deemed to have incurred from the Issuing Lender a borrowing (each a “Letter
of Credit Borrowing”) in the amount of such drawing.  Such Letter of Credit Borrowing shall be due
and payable on demand (together with interest) and shall bear interest at the
rate per annum applicable to the Revolving Credit Loans under the Base Rate
Option.  Each Lender’s payment to the
Agent for the account of the Issuing Lender pursuant to Section 2.9.3.3
shall be deemed to be a payment in respect of its participation in such Letter
of Credit Borrowing and shall constitute a “Participation Advance” from such
Lender in satisfaction of its participation obligation under this Section 2.9.3.


 


2.9.4        Repayment
of Participation Advances.


 


2.9.4.1     Upon
(and only upon) receipt by the Agent for the account of the Issuing Lender of
immediately available funds from the Borrower: 
(i) in reimbursement of any payment made by the Issuing Lender
under the Letter of Credit with respect to which any Lender has made a
Participation Advance to the Agent, or (ii) in payment of interest on such
a payment made by the Issuing Lender under such a Letter of Credit, the Agent
on behalf of the Issuing Lender will pay to each Lender, in the same funds as
those received by the Agent, the amount of such Lender’s Ratable Share of such
funds, except the Agent shall retain for the account of the Issuing Lender the
amount of the Ratable Share of such funds of any Lender that did not make a
Participation Advance in respect of such payment by the Issuing Lender.


 


29

















 


2.9.4.2     If
payment received by the Agent for the account of the Issuing Lender is required
at any time to return to any Loan Party, or to a trustee, receiver, liquidator,
custodian, or any official in any Insolvency Proceeding, any portion of the
payments made by any Loan Party to the Agent for the account of the Issuing
Lender pursuant to Section 2.9.4.1 in reimbursement of a payment made
under the Letter of Credit or interest or fee thereon, each Lender shall, on
demand of the Agent, forthwith return to the Agent for the account of the
Issuing Lender the amount of its Ratable Share of any amounts so returned by
the Agent plus interest thereon from the date such demand is made to the date
such amounts are returned by such Lender to the Agent, at a rate per annum
equal to the Federal Funds Effective Rate in effect from time to time.


 


2.9.5        Documentation.


 


Each Loan Party agrees to
be bound jointly and severally by the terms of the Issuing Lender’s application
and agreement for letters of credit and the Issuing Lender’s written
regulations and customary practices relating to letters of credit, though such
interpretation may be different from such Loan Party’s own.  In the event of a conflict between such
application or agreement and this Agreement, this Agreement shall govern.  It is understood and agreed that, except in
the case of gross negligence or willful misconduct, the Agent shall not be
liable for any error, negligence and/or mistakes, whether of omission or
commission, in following any Issuing Lender’s instructions or those contained
in the Letters of Credit or any modifications, amendments or supplements
thereto.


 


2.9.6        Determinations
to Honor Drawing Requests.


 


In determining whether to
honor any request for drawing under any Letter of Credit by the beneficiary
thereof, the Issuing Lender shall be responsible only to determine that the
documents and certificates required to be delivered under such Letter of Credit
have been delivered and that they comply on their face with the requirements of
such Letter of Credit.


 


2.9.7        Nature
of Participation and Reimbursement Obligations.


 


Each Lender’s obligation
in accordance with this Agreement to make the Revolving Credit Loans or
Participation Advances, as contemplated by Section 2.9.3, as a result of a
drawing under a Letter of Credit, and the Obligations of the Borrower to
reimburse the Issuing Lender upon a draw under a Letter of Credit, shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Section 2.9 under all circumstances,
including the following circumstances:


 


(i)            any
set-off, counterclaim, recoupment, defense or other right which such Lender may
have against the Issuing Lender or any of its Affiliates, the Borrower or any
other Person for any reason whatsoever;


 


(ii)           the
failure of any Loan Party or any other Person to comply, in connection with a
Letter of Credit Borrowing, with the conditions set forth in Section 2.1
[Revolving Credit Commitments], 2.5 [Revolving Credit Loan Requests], 2.6
[Making 


 


30

















 


Revolving Credit Loans] or 7.2 [Each Additional Loan]
or as otherwise set forth in this Agreement for the making of a Revolving
Credit Loan, it being acknowledged that such conditions are not required for
the making of a Letter of Credit Borrowing and the obligation of the Lenders to
make Participation Advances under Section 2.9.3;


 


(iii)          any
lack of validity or enforceability of any Letter of Credit;


 


(iv)          any
claim of breach of warranty that might be made by any Loan Party or any Lender
against any beneficiary of a Letter of Credit, or the existence of any claim,
set-off, recoupment, counterclaim, crossclaim, defense or other right which any
Loan Party or any Lender may have at any time against a beneficiary, successor
beneficiary, any transferee or assignee of any Letter of Credit or the proceeds
thereof (or any Persons for whom any such transferee may be acting), the
Issuing Lender or its Affiliates or any Lender or any other Person or, whether
in connection with this Agreement, the transactions contemplated herein or any
unrelated transaction (including any underlying transaction between any Loan
Party or Subsidiaries of a Loan Party and the beneficiary for which any Letter
of Credit was procured);


 


(v)           the
lack of power or authority of any signer of (or any defect in or forgery of any
signature or endorsement on) or the form of or lack of validity, sufficiency,
accuracy, enforceability or genuineness of any draft, demand, instrument,
certificate or other document presented under or in connection with any Letter
of Credit, or any fraud or alleged fraud in connection with any Letter of
Credit, or the transport of any property or provisions of services relating to
a Letter of Credit, in each case even if the Issuing Lender or any of the
Issuing Lender’s Affiliates has been notified thereof;


 


(vi)          payment
by the Issuing Lender or any of its Affiliates under any Letter of Credit
against presentation of a demand, draft or certificate or other document which
does not comply with the terms of such Letter of Credit;


 


(vii)         the
solvency of, or any acts of omissions by, any beneficiary of any Letter of
Credit, or any other Person having a role in any transaction or obligation
relating to a Letter of Credit, or the existence, nature, quality, quantity,
condition, value or other characteristic of any property or services relating
to a Letter of Credit;


 


(viii)        any
failure by the Issuing Lender or any of Issuing Lender’s Affiliates to issue
any Letter of Credit in the form requested by any Loan Party, unless the
Issuing Lender has received written notice from such Loan Party of such failure
within three (3) Business Days after the Issuing Lender shall have
furnished such Loan Party and the Agent a copy of such Letter of Credit and
such error is material and no drawing has been made thereon prior to receipt of
such notice;


 


(ix)           any
adverse change in the business, operations, properties, assets, condition
(financial or otherwise) or prospects of any Loan Party or Subsidiaries of a
Loan Party;


 


(x)            any
breach of this Agreement or any other Loan Document by any party thereto;


 


31

















 


(xi)           the
occurrence or continuance of an Insolvency Proceeding with respect to any Loan
Party;


 


(xii)          the
fact that an Event of Default or a Potential Default shall have occurred and be
continuing;


 


(xiii)         the
fact that the Expiration Date shall have passed or this Agreement or the
Commitments hereunder shall have been terminated; and


 


(xiv)        any
other circumstance or happening whatsoever, whether or not similar to any of
the foregoing.


 


2.9.8        Indemnity.


 


In addition to amounts
payable as provided in Section 10.5 [Reimbursement of Issuing Lender by
Borrower, Etc.],  the Borrower hereby agrees to
protect, indemnify, pay and save harmless the Issuing Lender and any of Issuing
Lender’s Affiliates that has issued a Letter of Credit from and against any and
all claims, demands, liabilities, damages, taxes, penalties, interest,
judgments, losses, costs, charges and expenses (including reasonable fees,
expenses and disbursements of counsel and allocated costs of internal counsel)
which the Issuing Lender or any of Issuing Lender’s Affiliates may incur or be
subject to as a consequence, direct or indirect, of the issuance of any Letter
of Credit, other than as a result of:  (A) the
gross negligence or willful misconduct of the Issuing Lender as determined by a
final judgment of a court of competent jurisdiction or (B) the wrongful
dishonor by the Issuing Lender or any of Issuing Lender’s Affiliates of a
proper demand for payment made under any Letter of Credit, except if such
dishonor resulted from any act or omission, whether rightful or wrongful, of
any present or future de jure or de facto government or governmental authority
(all such acts or omissions herein called “Governmental Acts”).


 


2.9.9        Liability
for Acts and Omissions.


 


As between any Loan Party
and the Issuing Lender, or the Issuing Lender’s Affiliates, such Loan Party
assumes all risks of the acts and omissions of, or misuse of the Letters of
Credit by, the respective beneficiaries of such Letters of Credit.  In furtherance and not in limitation of the
foregoing, the Issuing Lender shall not be responsible for any of the following
including any losses or damages to any Loan Party or other Person or property
relating therefrom:  (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for an issuance of
any such Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged (even if the
Issuing Lender or the Issuing Lender’s Affiliates shall have been notified
thereof); (ii) the validity or sufficiency of any instrument transferring
or assigning or purporting to transfer or assign any such Letter of Credit or
the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason; (iii) the
failure of the beneficiary of any such Letter of Credit, or any other party to
which such Letter of Credit may be transferred, to comply fully with any
conditions required in order to draw upon such Letter of Credit or any other
claim of any Loan Party against any beneficiary of such 


 


32

















 


Letter of Credit,
or any such transferee, or any dispute between or among any Loan Party and any
beneficiary of any Letter of Credit or any such transferee; (iv) errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex or otherwise, whether or not they be in
cipher; (v) errors in interpretation of technical terms; (vi) any
loss or delay in the transmission or otherwise of any document required in
order to make a drawing under any such Letter of Credit or of the proceeds
thereof; (vii) the misapplication by the beneficiary of any such Letter of
Credit of the proceeds of any drawing under such Letter of Credit; or (viii) any
consequences arising from causes beyond the control of the Issuing Lender or
the Issuing Lender’s Affiliates, as applicable, including any Governmental
Acts, and none of the above shall affect or impair, or prevent the vesting of,
any of the Issuing Lender’s or the Issuing Lender’s Affiliates rights or powers
hereunder.  Nothing in the preceding
sentence shall relieve the Issuing Lender from liability for the Issuing Lender’s
gross negligence or willful misconduct in connection with actions or omissions
described in such clauses (i) through (viii) of such sentence.  In no event shall the Issuing Lender or the
Issuing Lender’s Affiliates be liable to any Loan Party for any indirect,
consequential, incidental, punitive, exemplary or special damages or expenses
(including attorneys’ fees), or for any damages resulting from any change in
the value of any property relating to a Letter of Credit.


 


Without limiting the
generality of the foregoing, the Issuing Lender and each of its
Affiliates:  (i) may rely on any
oral or other communication believed in good faith by the Issuing Lender or such
Affiliate to have been authorized or given by or on behalf of the applicant for
a Letter of Credit, (ii) may honor any presentation if the documents
presented appear on their face substantially to comply with the terms and
conditions of the relevant Letter of Credit; (iii) may honor a previously
dishonored presentation under a Letter of Credit, whether such dishonor was
pursuant to a court order, to settle or compromise any claim of wrongful
dishonor, or otherwise, and shall be entitled to reimbursement to the same
extent as if such presentation had initially been honored, together with any
interest paid by the Issuing Lender or its Affiliate; (iv) may honor any
drawing that is payable upon presentation of a statement advising negotiation
or payment, upon receipt of such statement (even if such statement indicates
that a draft or other document is being delivered separately), and shall not be
liable for any failure of any such draft or other document to arrive, or to
conform in any way with the relevant Letter of Credit; (v) may pay any
paying or negotiating bank claiming that it rightfully honored under the laws
or practices of the place where such bank is located; and (vi) may settle
or adjust any claim or demand made on the Issuing Lender or its Affiliate in
any way related to any order issued at the applicant’s request to an air
carrier, a letter of guarantee or of indemnity issued to a carrier or any
similar document (each an “Order”) and honor any drawing in connection with any
Letter of Credit that is the subject to such Order, notwithstanding that any
drafts or other documents presented in connection with such Letter of Credit
fail to conform in any way with such Letter of Credit.


 


In furtherance and
extension and not in limitation of the specific provisions set forth above, any
action taken or omitted by the Issuing Lender or the Issuing Lender’s
Affiliates under or in connection with the Letters of Credit issued by it or
any documents and certificates delivered thereunder, if taken or omitted in good
faith, shall not put the Issuing Lender or the Issuing Lender’s Affiliates
under any resulting liability to the Borrower, any other Loan Party or any
Lender.


 


33

















 


2.10                 Increase
in Commitments.


 


2.10.1      Increasing
Lenders and New Lenders.


 


The Borrower shall have the right to make up to four (4) requests
prior to the Expiration Date that:  (1) the
current Lenders (the “Existing Lenders”) increase their Revolving Credit
Commitments (an Existing Lender which elects to increase its Revolving Credit
Commitment shall be referred to as an “Increasing Lender”) and/or (2) one
or more new lenders (each a “New Lender”) join this Agreement and provide a
Revolving Credit Commitment hereunder, subject to the following terms and
conditions:


 


(i)            No
Obligation to Increase.  No Existing
Lender shall be obligated to increase its Revolving Credit Commitment and any
increase in the Revolving Credit Commitment by any Existing Lender shall be in
the sole discretion of such Existing Lender.


 


(ii)           Defaults. 
There shall exist no Event of Default or Potential Default on the
effective date of such increase (the “Revolving Credit Commitment Increase Date”)
after giving effect to such increase.


 


(iii)          Aggregate
Revolving Credit Commitments.  After
giving effect to any such increase, the total Revolving Credit Commitments
shall not exceed $200,000,000 and the total aggregate amount of all such
increases shall not exceed $75,000,000.


 


(iv)          Minimum
Increases.  The request for an
increase shall be in a minimum amount of $10,000,000.


 


(v)           Resolutions;
Opinion.  The Loan Parties shall
deliver to the Agent on or before the Revolving Credit Commitment Increase Date
the following documents in a form reasonably acceptable to the Agent:  (1) certifications of their corporate
secretaries with attached resolutions certifying that the increase in the
Revolving Credit Commitment has been approved by such Loan Parties and (2) an
opinion of counsel addressed to the Agent and the Lenders addressing the authorization
and execution of the Loan Documents by, and enforceability of the Loan
Documents against, the Loan Parties.


 


(vi)          Notes.  The Borrower shall execute and deliver:  (1) to each Increasing Lender a
replacement Note (except if such Increasing Lender requests that it not receive
a Note) reflecting the new amount of such Increasing Lender’s Revolving Credit
Commitment after giving effect to the increase (and the prior Note issued to
such Increasing Lender shall be deemed to be terminated) and (2) to each New
Lender a Note (except if such New Lender requests that it not receive a Note)
reflecting the amount of such New Lenders’ Revolving Credit Commitment.


 


(vii)         Approval.  The Agent, in its sole discretion, and the
Increasing Lender or New Lender, as the case may be, that is providing such
increase, shall have approved of such increase.


 


34

















 


(viii)        Increasing
Lenders.  If any portion of the
increase in Revolving Credit Commitments is being provided by one or more
Increasing Lenders, then such Increasing Lenders shall confirm their agreement
to increase their Revolving Credit Commitment pursuant to a revolving credit
commitment increase agreement, acceptable to the Agent, signed by the
Increasing Lenders and the Loan Parties and delivered to the Agent at least
five (5) Business Days before the Revolving Credit Commitment Increase
Date.


 


(ix)           New
Lenders—Joinder.  If the Borrower
desires that one or more New Lenders provide all or a portion of such increase
in Revolving Credit Commitments, then each New Lender, the Loan Parties and the
Agent shall execute a joinder and assumption agreement, acceptable to the
Agent, pursuant to which the New Lender shall join and become a party to this
Agreement and any other Loan Documents as applicable, effective on the
Revolving Credit Commitment Increase Date with a Revolving Credit Commitment in
the amount set forth in Schedule I to such joinder and assumption agreement.


 


2.10.2      Treatment
of Outstanding Loans and Letters of Credit.


 


2.10.2.1                         Repayment
of Outstanding Loans; Borrowing of New Loans.


 


On the Revolving Credit
Commitment Increase Date, the Borrower shall repay all Loans outstanding on the
Revolving Credit Commitment Increase Date, subject to the Borrower’s indemnity
obligations under Section 5.5.2 [Indemnity] provided that it may borrow
new Loans with a Borrowing Date on the Revolving Credit Commitment Increase
Date. Each of the Lenders shall participate in any new Loans made on or after
the Revolving Credit Commitment Increase Date in accordance with their
respective Ratable Shares after giving effect to the increase in Revolving
Credit Commitments contemplated by this Section 2.10.


 


2.10.2.2                         Outstanding
Letters of Credit.


 


On the Revolving Credit
Commitment Increase Date, each Increasing Lender and each New Lender:  (a) will be deemed to have purchased a
participation in each then outstanding Letter of Credit equal to its Ratable
Share of each such Letter of Credit and the participation of each other Lender
in each such Letter of Credit shall be adjusted accordingly and (b) will
acquire, (and will pay to the Agent, for the account of each Lender, in
immediately available funds, an amount equal to) its Ratable Share of all
outstanding Participation Advances.


 


3.     RESERVED


 


4.     INTEREST RATES


 


4.1                   Interest
Rate Options.


 


The Borrower shall
pay interest in respect of the outstanding unpaid principal amount of the Loans
as selected by it from the Base Rate Option or Euro-Rate Option set forth 


 


35

















 


below applicable to the Loans, it being understood that, subject to the
provisions of this Agreement, the Borrower may select different Interest Rate
Options and different Interest Periods to apply simultaneously to the Loans
comprising different Borrowing Tranches and may convert to or renew one or more
Interest Rate Options with respect to all or any portion of the Loans
comprising any Borrowing Tranche, provided that there shall not be at
any one time outstanding more than five (5) Borrowing Tranches in the
aggregate among all of the Loans.  If at
any time the designated rate applicable to any Loan made by any Lender exceeds
such Lender’s highest lawful rate, the rate of interest on such Lender’s Loan
shall be limited to such Lender’s highest lawful rate.


 


4.1.1        Revolving
Credit Interest Rate Options.


 


The Borrower shall have
the right to select from the following Interest Rate Options applicable to the
Revolving Credit Loans:


 


(i)            Revolving
Credit Base Rate Option:  A
fluctuating rate per annum (computed on the basis of a year of 365 or 366 days,
as the case may be) equal to the Base Rate plus the Applicable Margin, such
interest rate to change automatically from time to time effective as of the
effective date of each change in the Base Rate; or


 


(ii)           Revolving
Credit Euro-Rate Option:  A rate per
annum (computed on the basis of a year of 360 days and actual days elapsed)
equal to the Euro-Rate plus the Applicable Margin.


 


4.1.2        Rate
Quotations.


 


The Borrower may call the
Agent on or before the date on which a Loan Request is to be delivered to
receive an indication of the rates then in effect, but it is acknowledged that
such projection shall not be binding on the Agent or the Lenders nor affect the
rate of interest which thereafter is actually in effect when the election is
made.


 


4.2                   Interest
Periods.


 


At any time when
the Borrower shall select, convert to or renew a Euro-Rate Option, the Borrower
shall notify the Agent thereof at least three (3) Business Days prior to
the effective date of such Euro-Rate Option by delivering a Loan Request.  The notice shall specify an Interest Period
during which such Interest Rate Option shall apply.  Notwithstanding the preceding sentence, the
following provisions shall apply to any selection of, renewal of, or conversion
to a Euro-Rate Option:


 


4.2.1        Amount
of Borrowing Tranche.


 


each Borrowing Tranche of
Euro-Rate Loans shall be in integral multiples of $2,000,000 and not less than
$2,000,000;


 


36














 


4.2.2        Renewals.


 


in the case of the
renewal of a Euro-Rate Option at the end of an Interest Period, the first day
of the new Interest Period shall be the last day of the preceding Interest
Period, without duplication in payment of interest for such day.


 


4.3                   Interest
After Default.


 


To the extent
permitted by Law, upon the occurrence of an Event of Default and until such
time such Event of Default shall have been cured or waived:


 


4.3.1        Letter of Credit Fees, Interest Rate.


 


The Letter of Credit Fees
and the rate of interest for each Loan otherwise applicable pursuant to Section 2.9.2
[Letter of Credit Fees] or Section 4.1 [Interest Rate Options],
respectively, shall bear interest at a rate per annum equal to the sum of the
interest applicable under the Revolving Credit Base Rate Option plus an
additional 2.0% per annum; and


 


4.3.2        Other Obligations.


 


Each other Obligation
hereunder if not paid when due shall bear interest at a rate per annum equal to
the sum of the rate of interest applicable under the Revolving Credit Base Rate
Option plus an additional 2.0% per annum from the time such Obligation becomes
due and payable and until it is paid in full.


 


4.3.3        Acknowledgment.


 


The Borrower acknowledges
that the increase in rates referred to in this Section 4.3 reflects, among
other things, the fact that such Loans or other amounts have become a
substantially greater risk given their default status and that the Lenders are
entitled to additional compensation for such risk; and all such interest shall
be payable by Borrower upon demand by Agent.


 


4.4                   Euro-Rate
Unascertainable; Illegality; Increased Costs; Deposits Not Available.


 


4.4.1        Unascertainable.


 


If on any date on which a
Euro-Rate would otherwise be determined, the Agent shall have determined that:


 


(i)            adequate and reasonable means do not
exist for ascertaining such Euro-Rate, or


 


(ii)           a contingency has occurred which
materially and adversely affects the London interbank eurodollar market
relating to the Euro-Rate, the Agent shall have the rights specified in Section 4.4.3.


 


37

















 


4.4.2        Illegality; Increased Costs; Deposits Not
Available.


 


If at
any time any Lender shall have determined that:


 


(i)            the making, maintenance or funding of any
Loan to which a Euro-Rate Option applies has been made impracticable or
unlawful by compliance by such Lender in good faith with any Law or any
interpretation or application thereof by any Official Body or with any request
or directive of any such Official Body (whether or not having the force of
Law), or


 


(ii)           such Euro-Rate Option will not adequately
and fairly reflect the cost to such Lender of the establishment or maintenance
of any such Loan, or


 


(iii)          after
making all reasonable efforts, deposits of the relevant amount in Dollars for
the relevant Interest Period for a Loan, or to banks generally, to which a
Euro-Rate Option applies, respectively, are not available to such Lender with
respect to such Loan, or to banks generally, in the interbank eurodollar
market,


 


then the Agent and
the Lenders shall have the rights specified in Section 4.4.3.


 


4.4.3        Agent’s and Lender’s Rights.


 


In the case of any event
specified in Section 4.4.1, the Agent shall promptly so notify the Lenders
and the Borrower thereof, and in the case of an event specified in Section 4.4.2,
such Lender shall promptly so notify the Agent and endorse a certificate to
such notice as to the specific circumstances of such notice, and the Agent
shall promptly send copies of such notice and certificate to the other Lenders
and the Borrower.  Upon such date as
shall be specified in such notice (which shall not be earlier than the date
such notice is given), the obligation of: 
(A) the Lenders, in the case of such notice given by the Agent, or (B) such
Lender, in the case of such notice given by such Lender, to allow the Borrower
to select, convert to or renew a Euro-Rate Option shall be suspended until the
Agent shall have later notified the Borrower, or such Lender shall have later
notified the Agent, of the Agent’s or such Lender’s, as the case may be,
determination that the circumstances giving rise to such previous determination
no longer exist.  If at any time the
Agent makes a determination under Section 4.4.1 and the Borrower has
previously notified the Agent of its selection of, conversion to or renewal of
a Euro-Rate Option and such Interest Rate Option has not yet gone into effect,
such notification shall be deemed to provide for selection of, conversion to or
renewal of the Base Rate Option otherwise available with respect to such
Loans.  If any Lender notifies the Agent
of a determination under Section 4.4.2, the Borrower shall, subject to the
Borrower’s indemnification Obligations under Section 5.5.2 [Indemnity], as
to any Loan of the Lender to which a Euro-Rate Option applies, on the date
specified in such notice either convert such Loan to the Base Rate Option
otherwise available with respect to such Loan or prepay such Loan in accordance
with Section 5.4 [Voluntary Prepayments]. 
Absent due notice from the Borrower of conversion or prepayment, such
Loan shall automatically be converted to the Base Rate Option otherwise
available with respect to such Loan upon such specified date.


 


38

















 


4.5                   Selection
of Interest Rate Options.


 


If the Borrower
fails to select a new Interest Period to apply to any Borrowing Tranche of
Loans under the Euro-Rate Option at the expiration of an existing Interest
Period applicable to such Borrowing Tranche in accordance with the provisions
of Section 4.2 [Interest Periods], the Borrower shall be deemed to have
converted such Borrowing Tranche to the Revolving Credit Base Rate Option
commencing upon the last day of the existing Interest Period.


 


5.     PAYMENTS


 


5.1                   Payments.


 


All payments and
prepayments to be made in respect of principal, interest, Commitment Fees,
Letter of Credit Fees, Agent’s Fee or other fees or amounts due from the
Borrower hereunder shall be payable prior to 11:00 a.m., Pittsburgh time,
on the date when due without presentment, demand, protest or notice of any
kind, all of which are hereby expressly waived by the Borrower, and without
set-off, counterclaim or other deduction of any nature, and an action therefor
shall immediately accrue.  Such payments
shall be made to the Agent at the Principal Office and each (other than the
Agent’s Fee and any fees paid to the Issuing Lender) is made for the ratable
accounts of the Lenders with respect to the Loans in U.S. Dollars and in
immediately available funds, and the Agent shall promptly distribute such
amounts to the Lenders in immediately available funds, provided that in
the event payments are received by 11:00 a.m., Pittsburgh time, by the
Agent with respect to the Loans and such payments are not distributed to the
Lenders on the same day received by the Agent, the Agent shall pay the Lenders
the Federal Funds Effective Rate with respect to the amount of such payments
for each day held by the Agent and not distributed to the Lenders.  The Agent’s and each Lender’s statement of
account, ledger or other relevant record shall, in the absence of manifest
error, be conclusive as the statement of the amount of principal of and
interest on the Loans and other amounts owing under this Agreement and shall be
deemed an “account stated.”


 


5.2                   Pro
Rata Treatment of Lenders.


 


Each borrowing
shall be allocated to each Lender according to its Ratable Share, and each
selection of, conversion to or renewal of any Interest Rate Option and each
payment or prepayment by the Borrower with respect to principal, interest,
Commitment Fees, Letter of Credit Fees, or other fees (except for the Agent’s
Fee and Letter of Credit fronting fee) or amounts due from the Borrower
hereunder to the Lenders with respect to the Loans, shall (except as provided
in Section 4.4.3 [Agent’s and Lender’s Rights] in the case of an event
specified in Section 4.4 [Euro-Rate Unascertainable; Etc.], 5.4.2
[Replacement of a Lender] or 5.5 [Additional Compensation in Certain
Circumstances]) be made in proportion to the applicable Loans outstanding from
each Lender and, if no such Loans are then outstanding, in proportion to the
Ratable Share of each Lender.


 


39

















 


5.3                   Interest
Payment Dates.


 


Interest on Loans
to which the Base Rate Option applies shall be due and payable in arrears on
the first day of each October, January, April and July after the date
hereof and on the Expiration Date or upon acceleration of the Notes.  Interest on Loans to which the Euro-Rate
Option applies shall be due and payable on the last day of each Interest Period
for those Loans and, if such Interest Period is longer than three (3) Months,
also on the 90th day of such Interest Period. 
Interest on the principal amount of each Loan or other monetary Obligation
shall be due and payable on demand after such principal amount or other
monetary Obligation becomes due and payable (whether on the stated maturity
date, upon acceleration or otherwise).


 


5.4                   Voluntary
Prepayments.


 


5.4.1        Right to Prepay.


 


The Borrower shall have
the right at its option from time to time to prepay the Loans in whole or part
without premium or penalty (except as provided in Section 5.4.2 or in Section 5.5
[Additional Compensation in Certain Circumstances]):


 


(i)            at any time with respect to any Loan to
which the Base Rate Option applies,


 


(ii)           on the last day of the applicable
Interest Period with respect to Loans to which a Euro-Rate Option applies,


 


(iii)          on
the date specified in a notice by any Lender pursuant to Section 4.4
[Euro-Rate Unascertainable, Etc.] with respect to any Loan to which a Euro-Rate
Option applies.


 


Whenever the Borrower
desires to prepay any part of the Loans, it shall provide a prepayment notice
to the Agent by 1:00 p.m. at least one (1) Business Day prior to the
date of prepayment of Loans setting forth the following information:


 


(a)           the date, which shall be a Business Day, on which the
proposed prepayment is to be made; and


 


(b)           the total principal amount of such prepayment, which
shall not be less than $1,000,000.


 


All prepayment notices
shall be irrevocable.  The principal
amount of the Loans for which a prepayment notice is given, together with
interest on such principal amount except with respect to Loans to which the
Base Rate Option applies, shall be due and payable on the date specified in
such prepayment notice as the date on which the proposed prepayment is to be
made.  Except as provided in Section 4.4.3
[Agent’s and Lender’s rights], if the Borrower prepays a Loan but fails to
specify the applicable Borrowing Tranche which the Borrower is prepaying, the
prepayment shall be applied first to Loans to which the Base Rate Option
applies, 


 


40

















 


then to Loans to
which the Euro-Rate Option applies.  Any
prepayment hereunder shall be subject to the Borrower’s Obligation to indemnify
the Lenders under Section 5.5.2 [Indemnity].


 


5.4.2        Replacement of a Lender.


 


In the event any
Lender:  (i) gives notice under Section 4.4
[Euro-Rate Unascertainable, Etc.] or Section 5.5.1 [Increased Costs,
Etc.], (ii) does not fund Revolving Credit Loans because the making of
such Loans would contravene any Law applicable to such Lender, (iii) becomes
a Nonconsenting Lender, or (iv) becomes subject to the control of an
Official Body (other than normal and customary supervision), then the Borrower
shall have the right at its option, with the consent of the Agent, which shall
not be unreasonably withheld, to prepay the Loans of such Lender in whole,
together with all interest accrued thereon, and terminate such Lender’s
Commitment within ninety (90) days after: 
(w) receipt of such Lender’s notice under Section 4.4
[Euro-Rate Unascertainable, Etc.] or 5.5.1 [Increased Costs, Etc.], (x) the
date such Lender has failed to fund Revolving Credit Loans because the making
of such Loans would contravene any Law applicable to such Lender, (y) such
Lender becomes a Nonconsenting Lender or (z) the date such Lender became
subject to the control of an Official Body, as applicable; provided that
the Borrower shall also pay to such Lender at the time of such prepayment any
amounts required under Section 5.5 [Additional Compensation in Certain
Circumstances] and any accrued interest due on such amount and any related
fees; provided, however, that the Commitment of such Lender shall be
provided by one or more of the remaining Lenders or a replacement bank
acceptable to the Agent; provided, further, the remaining Lenders shall
have no obligation hereunder to increase their Commitments.  Notwithstanding the foregoing, the Agent may
only be replaced subject to the requirements of Section 10.14 [Successor
Agent] and provided that all Letters of Credit have expired or been
terminated or replaced.


 


5.4.3        Change of Lending Office.


 


Each Lender agrees that
upon the occurrence of any event giving rise to increased costs or other
special payments under Section 4.4.2 [Illegality, Etc.] or 5.5.1
[Increased Costs, Etc.] with respect to such Lender, it will if requested by
the Borrower use reasonable efforts (subject to overall policy considerations
of such Lender) to designate another lending office for any Loans or Letters of
Credit affected by such event, provided that such designation is made on
such terms that such Lender and its lending office suffer no economic, legal or
regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of such Section.  Nothing in this Section 5.4.3 shall
affect or postpone any of the Obligations of the Borrower or any other Loan
Party or the rights of the Agent or any Lender provided in this Agreement.


 


5.4.4        Reduction of Commitment.


 


The Borrower shall have
the right at any time and from time to time upon five (5) Business Days’
prior written notice to Agent to permanently and ratably reduce, in whole
multiples of $1,000,000 of principal, or terminate the Commitments without
penalty or premium, except as hereinafter set forth, provided that any such
reduction or termination shall be 


 


41

















 


accompanied
by:  (i) the payment in full of any
Commitment Fee and other fees then accrued on the amount of such reduction or
termination, (ii) prepayment of the Revolving Credit Notes (together with
cash collateralization, if necessary, of the Letters of Credit), together with
the full amount of interest accrued on the principal sum to be prepaid (and all
amounts referred to in Section 5.5 [Additional Compensation in Certain
Circumstances]), to the extent that the aggregate amount thereof then
outstanding exceeds the Commitments as so reduced or terminated.  From the effective date of any such reduction
or termination, the obligations of Borrower to pay the Commitment Fee shall
correspondingly be reduced or cease, as the case may be.


 


5.5                   Additional
Compensation in Certain Circumstances.


 


5.5.1        Increased Costs or Reduced Return Resulting
from Taxes, Reserves, Capital Adequacy Requirements, Expenses, Etc.


 


If any Law, guideline or
interpretation or any change in any Law, guideline or interpretation or
application thereof by any Official Body charged with the interpretation or
administration thereof or compliance with any request or directive (whether or
not having the force of Law) of any central bank or other Official Body:


 


(i)            subjects any Lender to any tax or changes
the basis of taxation with respect to this Agreement, the Notes, the Loans or
payments by the Borrower of principal, interest, Commitment Fees, or other
amounts due from the Borrower hereunder or under the Notes (except for taxes on
the overall net income of such Lender),


 


(ii)           imposes, modifies or deems applicable any
reserve, special deposit or similar requirement against credits or commitments
to extend credit extended by, or assets (funded or contingent) of, deposits
with or for the account of, or other acquisitions of funds by, any Lender, or


 


(iii)          imposes,
modifies or deems applicable any capital adequacy or similar requirement (A) against
assets (funded or contingent) of, or letters of credit, other credits or
commitments to extend credit extended by, any Lender, or (B) otherwise
applicable to the obligations of any Lender under this Agreement,


 


and the result of
any of the foregoing is to increase the cost to, reduce the income receivable
by, or impose any expense (including loss of margin) upon any Lender with
respect to this Agreement, the Notes or the making, maintenance or funding of
any part of the Loans (or, in the case of any capital adequacy or similar
requirement, to have the effect of reducing the rate of return on any Lender’s
capital, taking into consideration such Lender’s customary policies with
respect to capital adequacy) by an amount which such Lender in its sole
discretion deems to be material, such Lender shall from time to time notify the
Borrower and the Agent of the amount determined in good faith (using any
averaging and attribution methods employed in good faith) by such Lender to be
necessary to compensate such Lender for such increase in cost, reduction of
income, additional expense or reduced rate of return.  Such notice shall set forth in reasonable 


 


42

















 


detail the basis
for such determination.  Such amount
shall be due and payable by the Borrower to such Lender ten (10) Business
Days after such notice is given.


 


5.5.2        Indemnity.


 


In addition to the
compensation required by Section 5.5.1 [Increased Costs, Etc.], the
Borrower shall indemnify each Lender against all liabilities, losses or
expenses (including loss of margin, any loss or expense incurred in liquidating
or employing deposits from third parties and any loss or expense incurred in
connection with funds acquired by a Lender to fund or maintain Loans subject to
a Euro-Rate Option) which such Lender sustains or incurs as a consequence of
any:


 


(i)            payment, prepayment, conversion or
renewal of any Loan to which a Euro-Rate Option applies on a day other than the
last day of the corresponding Interest Period (whether or not such payment or
prepayment is mandatory, voluntary or automatic and whether or not such payment
or prepayment is then due),


 


(ii)           attempt by the Borrower to revoke
(expressly, by later inconsistent notices or otherwise) in whole or part any
Loan Requests under Section 2.5 [Revolving Credit Loan Requests] or Section 4.2
[Interest Periods] or notice relating to prepayments under Section 5.4
[Voluntary Prepayments], or


 


(iii)          default
by the Borrower in the performance or observance of any covenant or condition
contained in this Agreement or any other Loan Document, including any failure
of the Borrower to pay when due (by acceleration or otherwise) any principal,
interest, Commitment Fee or any other amount due hereunder.


 


If any Lender
sustains or incurs any such loss or expense, it shall from time to time notify
the Borrower of the amount determined in good faith by such Lender (which
determination may include such assumptions, allocations of costs and expenses
and averaging or attribution methods as such Lender shall deem reasonable) to
be necessary to indemnify such Lender for such loss or expense.  Such notice shall set forth in reasonable
detail the basis for such determination. 
Such amount shall be due and payable by the Borrower to such Lender ten (10) Business
Days after such notice is given.


 


6.     REPRESENTATIONS AND WARRANTIES


 


6.1                   Representations
and Warranties.


 


The Loan Parties,
jointly and severally, represent and warrant to the Agent and each of the
Lenders as follows:


 


6.1.1        Organization and Qualification.


 


Each Loan Party and each
Subsidiary of each Loan Party is a corporation, partnership or limited
liability company duly organized, validly existing and in good standing 


 


43

















 


under the laws of
its jurisdiction of organization.  Each
Loan Party and each Subsidiary of each Loan Party has the lawful power to own
or lease its properties and to engage in the business it presently conducts or
proposes to conduct.  Each Loan Party and
each Subsidiary of each Loan Party is duly licensed or qualified and in good
standing in each jurisdiction listed on Schedule 6.1.1 and in all other
jurisdictions where the property owned or leased by it or the nature of the
business transacted by it or both makes such licensing or qualification
necessary except to the extent that the failure to be so licensed or qualified
or in good standing would not reasonably be expected to result in any Material
Adverse Change.


 


6.1.2        Capitalization
and Ownership.


 


The issued and
outstanding securities of the Borrower consist of member interests owned as
indicated on Schedule 6.1.2.  All
of the Borrower’s member interests have been validly issued and are fully paid
and nonassessable.  There are no options,
warrants or other rights outstanding to purchase any such member interests
except as indicated on Schedule 6.1.2.


 


6.1.3        Subsidiaries.


 


Schedule 6.1.3 states the name of each of the Borrower’s
Subsidiaries, its jurisdiction of organization, its authorized capital stock,
the issued and outstanding shares (referred to herein as the “Subsidiary Shares”)
and the owners thereof if it is a corporation, its outstanding partnership
interests (the “Partnership Interests”) if it is a partnership and its
outstanding limited liability company interests, interests assigned to managers
thereof and the voting rights associated therewith (the “LLC Interests”) if it
is a limited liability company.  The
Borrower and each Subsidiary of the Borrower has good and marketable title to
all of the Subsidiary Shares, Partnership Interests and LLC Interests it
purports to own, free and clear in each case of any Lien (other than Liens
granted under the Loan Documents).  All
Subsidiary Shares, Partnership Interests and LLC Interests have been validly
issued, and all Subsidiary Shares are fully paid and nonassessable.  All capital contributions and other
consideration required to be made or paid in connection with the issuance of
the Partnership Interests and LLC Interests have been made or paid, as the case
may be.  There are no options,  warrants or other rights outstanding to purchase any such
Subsidiary Shares, Partnership Interests or LLC Interests except as indicated
on Schedule 6.1.3.


 


6.1.4        Power and Authority.


 


Each Loan Party has full
power to enter into, execute, deliver and carry out this Agreement and the
other Loan Documents to which it is a party, to incur the Indebtedness
contemplated by the Loan Documents and to perform its Obligations under the
Loan Documents to which it is a party, and all such actions have been duly
authorized by all necessary proceedings on its part.


 


6.1.5        Validity and Binding Effect.


 


This Agreement has been
duly and validly executed and delivered by each Loan Party, and each other Loan
Document which any Loan Party is required to execute and 


 


44

















 


deliver on or
after the date hereof will have been duly executed and delivered by such Loan
Party on the required date of delivery of such Loan Document.  This Agreement and each other Loan Document
constitutes, or will constitute, legal, valid and binding obligations of each
Loan Party which is or will be a party thereto on and after its date of
delivery thereof, enforceable against such Loan Party in accordance with its
terms, except to the extent that enforceability of any such Loan Document may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforceability of creditors’ rights generally or
limiting the right of specific performance.


 


6.1.6        No Conflict.


 


Neither the execution and
delivery of this Agreement or the other Loan Documents by any Loan Party nor
the consummation of the transactions herein or therein contemplated or
compliance with the terms and provisions hereof or thereof by any of them will
conflict with, constitute a default under or result in any breach of:  (i) the terms and conditions of the
certificate of incorporation, bylaws, certificate of limited partnership,
partnership agreement, certificate of formation, limited liability company
agreement or other organizational documents of any Loan Party or (ii) any
Law or any material agreement or instrument or order, writ, judgment,
injunction or decree to which any Loan Party or any of its Subsidiaries is a
party or by which it or any of its Subsidiaries is bound or to which it is
subject, or result in the creation or enforcement of any Lien whatsoever upon
any property (now or hereafter acquired) of any Loan Party or any of its
Subsidiaries (other than Liens granted under the Loan Documents).


 


6.1.7        Litigation.


 


There are no actions,
suits, proceedings or investigations pending or, to the knowledge of any Loan
Party, threatened against such Loan Party or any Subsidiary of such Loan Party
at law or equity before any Official Body which individually or in the
aggregate may result in any Material Adverse Change.  None of the Loan Parties or any Subsidiaries
of any Loan Party is in violation of any order, writ, injunction or decree of
any Official Body which may result in any Material Adverse Change.


 


6.1.8        Title to Properties.


 


The real property owned
or leased by each Loan Party and each Subsidiary of each Loan Party is
described on Schedule 6.1.8.  Each
Loan Party and each Subsidiary of each Loan Party has Mining Title to all
Active Operating Properties that are necessary or appropriate for any of the
Loan Parties and each Subsidiary of each Loan Party, taken as a whole, to
conduct their operations substantially as contemplated by the Financial
Projections, free and clear of all Liens and encumbrances except Permitted
Liens, and subject to the terms and conditions of the applicable leases;
provided, however, a Loan Party shall not be in breach of the foregoing in the
event that:  (i) it fails to own a
valid leasehold interest which, either considered alone or together with all
other such valid leaseholds that it fails to own, is not material to the
continued operations of such Loan Party as contemplated by the Financial
Projections or (ii) the Loan Party’s interest in a leasehold is less than
fully marketable because the consent of the lessor to future assignments has
not been obtained.


 


45

















 


6.1.9        Financial Statements.


 


(i)            Historical Statements. 
The Borrower has delivered to the Agent copies of its audited
consolidated year-end financial statements for the fiscal year ended March 31,
2006 (the “Annual Statements”).  In
addition, the Borrower has delivered to the Agent copies of its unaudited
consolidated interim financial statements for the fiscal year to date and as of
the end of the fiscal quarter ended June 30, 2006 (the “Interim Statements”)
(the Annual and Interim Statements being collectively referred to as the “Historical
Statements”).  The Historical  Statements were compiled from the books and
records maintained by the Borrower’s management, are correct and complete and
fairly represent the consolidated financial condition of the Borrower and its
Subsidiaries as of their dates and the results of operations for the fiscal
periods then ended and have been prepared in accordance with GAAP consistently
applied, subject (in the case of the Interim Statements) to normal year-end
audit adjustments.


 


(ii)           Financial Projections. 
The Borrower has delivered to the Agent financial projections (including
consolidated balance sheets, income statements and statements of cash flows) of
the Loan Parties and the Subsidiaries of the Loan Parties for the fiscal years
2006 through 2011 derived from various assumptions of the Borrower’s management
(the “Financial Projections”).  The
Financial Projections represent a reasonable range of possible results in light
of the history of the business, present and foreseeable conditions and the
intentions of the Borrower’s management. 
The Financial Projections accurately reflect the liabilities of the Loan
Parties and the Subsidiaries of the Loan Parties upon consummation of the
transactions contemplated hereby as of the Closing Date.


 


(iii)          Accuracy
of Financial Statements.  Neither the Borrower nor any
Subsidiary of the Borrower has any liabilities, contingent or otherwise, or
forward or long-term commitments that are not disclosed in the Historical
Statements or in the notes thereto, and except as disclosed therein, there are
no unrealized or anticipated losses from any commitments of the Borrower or any
Subsidiary of the Borrower which may cause a Material Adverse Change.  Since March 31, 2006, no
Material Adverse Change has occurred.


 


6.1.10      Use of Proceeds; Margin Stock; Section 20
Subsidiaries.


 


6.1.10.1   General.


 


The Loan Parties
intend to use the proceeds of the Loans in accordance with Section 
8.1.10.


 


6.1.10.2   Margin
Stock.


 


None of the Loan
Parties or any Subsidiaries of any Loan Party engages or intends to engage
principally, or as one of its important activities, in the business of
extending credit for the purpose, immediately, incidentally or ultimately, of purchasing
or carrying margin stock (within the meaning of Regulation U).  No part of the proceeds of any Loan has been
or will be used, immediately, incidentally or ultimately, to purchase or carry
any margin stock or to extend credit to others for the purpose of purchasing or
carrying any margin


 


46














 


stock or to refund
Indebtedness originally incurred for such purpose, or for any purpose which
entails a violation of or which is inconsistent with the provisions of the
regulations of the Board of Governors of the Federal Reserve System.  None of the Loan Parties or any Subsidiary of
any Loan Party holds or intends to hold margin stock in such amounts that more
than 25% of the reasonable value of the assets of any Loan Party or Subsidiary
of any Loan Party are or will be represented by margin stock.


 


6.1.10.3   Section 20
Subsidiaries.


 


The Loan Parties
do not intend to use and shall not use any portion of the proceeds of the
Loans, directly or indirectly, to purchase during the underwriting period, or
for thirty (30) days thereafter, Ineligible Securities being underwritten by a Section 20
Subsidiary.


 


6.1.11      Full
Disclosure.


 


Neither this Agreement
nor any other Loan Document, nor any certificate, statement, agreement or other
documents furnished to the Agent or any Lender in connection herewith or
therewith, contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained herein and
therein, in light of the circumstances under which they were made, not
misleading.  There is no fact known to
any Loan Party which materially adversely affects (i) the business,
financial condition, results of operations or prospects of any Loan Party or
Subsidiary of any Loan Party or (ii) the property or assets of the Loan
Parties, taken as a whole, in each case, which has not been set forth in this
Agreement or in the certificates, statements, agreements or other documents
furnished in writing to the Agent and the Lenders prior to or at the date
hereof in connection with the transactions contemplated hereby.


 


6.1.12      Taxes.


 


All federal, state, local
and other tax returns required to have been filed with respect to each Loan
Party and each Subsidiary of each Loan Party have been filed, and payment or
adequate provision has been made for the payment of all taxes, fees,
assessments and other governmental charges which have or may become due
pursuant to said returns or to assessments received, except to the extent that
such taxes, fees, assessments and other charges are being contested in good
faith by appropriate proceedings diligently conducted and for which such
reserves or other appropriate provisions, if any, as shall be required by GAAP
shall have been made.  There are no
agreements or waivers extending the statutory period of limitations applicable
to any federal income tax return of any Loan Party or Subsidiary of any Loan
Party for any period.


 


6.1.13      Consents
and Approvals.


 


Except for the filing of
financing statements and certain other filings which must be made in connection
with the Ancillary Security Documents (if required to be delivered by the terms
hereof), no consent, approval, exemption, order or authorization of, or a 


 


47

















 


registration or
filing with, any Official Body or any other Person is required by any Law or
any agreement in connection with the execution, delivery and carrying out of
this Agreement and the other Loan Documents by any Loan Party, except as listed
on Schedule 6.1.13, all of which shall have been obtained or made on or
prior to the Closing Date except as otherwise indicated on Schedule 6.1.13.


 


6.1.14      No
Event of Default; Compliance with Instruments.


 


No event has occurred and
is continuing and no condition exists or will exist after giving effect to the
borrowings or other extensions of credit to be made on the Closing Date under
or pursuant to the Loan Documents which constitutes an Event of Default or
Potential Default.  None of the Loan
Parties or any Subsidiaries of any Loan Party is in violation of:  (i) any term of its certificate of
incorporation, bylaws, certificate of limited partnership, partnership
agreement, certificate of formation, limited liability company agreement or
other organizational documents or (ii) any material agreement or
instrument to which it is a party or by which it or any of its properties may
be subject or bound where such violation would constitute a Material Adverse
Change.


 


6.1.15      Patents,
Trademarks, Copyrights, Licenses, Etc.


 


Each Loan Party and each
Subsidiary of each Loan Party owns or possesses all the material patents,
trademarks, service marks, trade names, copyrights, licenses, registrations,
franchises, permits and rights necessary to own and operate its properties and
to carry on its business as presently conducted and planned to be conducted by
such Loan Party or Subsidiary, without known possible, alleged or actual
conflict with the rights of others.  All
material patents, trademarks, service marks, trade names, copyrights, licenses,
registrations, franchises and permits of each Loan Party and each Subsidiary of
each Loan Party are listed and described on Schedule 6.1.15.


 


6.1.16      Solvency.


 


(i) The fair value
of each Loan Party’s assets exceed the total amount of liabilities (including
contingent, subordinated, unmatured and unliquidated liabilities) of such Loan
Party, (ii) the present fair salable value of the assets of each Loan
Party exceed the probable total liabilities (including contingent,
subordinated, unmatured and unliquidated liabilities) of each such Loan Party
as they become absolute and matured, (iii) each Loan Party is able to pay
its debts, including contingent liabilities, as they mature and become due, (iv) no
Loan Party is or will be engaged in a business for which its capital is, or
would be, unreasonably small, (v) no Loan Party is or will be engaged in a
transaction for which the remaining assets of such Loan Party are or would be
unreasonably small in relation to such business or transaction, (vi) no
Loan Party has incurred (by way of assumption or otherwise) any obligation or
liability (contingent, subordinated, unmatured and unliquidated or otherwise)
under this Agreement or any of the other Loan Documents to which it is a party,
nor has it made any conveyance pursuant to or in connection therewith, with
actual intent to hinder, delay or defraud either present or future creditors of
such Loan Party.


 


48

















 


6.1.17      Intentionally
Omitted.


 


6.1.18      Insurance.


 


Schedule 6.1.18 lists all insurance policies and other
bonds to which any Loan Party or Subsidiary of any Loan Party is a party, all
of which are valid and in full force and effect.  No notice has been given or claim made and no
grounds exist to cancel or avoid any insurance policies or bonds of the Loan
Parties or to reduce the coverage provided thereby.  Such policies and bonds provide adequate
coverage from reputable and financially sound insurers in amounts sufficient to
insure the assets and risks of each Loan Party and each Subsidiary of each Loan
Party in accordance with prudent business practice in the industry of the Loan
Parties and their Subsidiaries.


 


6.1.19      Compliance
with Laws.


 


The Loan Parties and
their Subsidiaries are in compliance in all material respects with all
applicable Laws (other than Environmental Laws which are specifically addressed
in Section 6.1.24 [Environmental Matters]) in all jurisdictions in which
any Loan Party or Subsidiary of any Loan Party is presently or will be doing
business except where the failure to do so would not constitute a Material
Adverse Change.


 


6.1.20      Material
Contracts; Burdensome Restrictions.


 


Schedule 6.1.20 lists all Material Contracts (including
Material Leases) relating to the business operations of each Loan Party and
each Subsidiary of any Loan Party, including all employee benefit plans and
Labor Contracts.  All such Material
Contracts are valid, binding and enforceable upon such Loan Party or Subsidiary
and each of the other parties thereto in accordance with their respective
terms, and there is no default thereunder, to the Loan Parties’ knowledge.  None of the Loan Parties or their
Subsidiaries is bound by any contractual obligation, or subject to any
restriction in any organization document, or any requirement of Law which could
result in a Material Adverse Change.


 


6.1.21      Investment
Companies; Regulated Entities.


 


None of the Loan Parties
or any Subsidiaries of any Loan Party is an “investment company” registered or
required to be registered under the Investment Company Act of 1940 or under the
“control” of an “investment company” as such terms are defined in the
Investment Company Act of 1940 and shall not become such an “investment company”
or under such “control.”  None of the
Loan Parties or any Subsidiaries of any Loan Party is subject to any other
Federal or state statute or regulation limiting its ability to incur
Indebtedness for borrowed money.


 


49

















 


6.1.22      Plans
and Benefit Arrangements.


 


Except
as set forth on Schedule 6.1.22:


 


(i)            The
Borrower and each other member of the ERISA Group are in compliance in all
material respects with any applicable provisions of ERISA with respect to all
Benefit Arrangements, Plans and Multiemployer Plans.  There has been no Prohibited Transaction with
respect to any Benefit Arrangement or any Plan or, to the best knowledge of the
Borrower, with respect to any Multiemployer Plan or Multiple Employer Plan,
which could result in any material liability of the Borrower or any other
member of the ERISA Group.  The Borrower
and all other members of the ERISA Group have made when due any and all
payments required to be made under any agreement relating to a Multiemployer
Plan or a Multiple Employer Plan or any Law pertaining thereto.  With respect to each Plan and Multiemployer
Plan, the Borrower and each other member of the ERISA Group:  (A) have fulfilled in all material
respects their obligations under the minimum funding standards of ERISA, (B) have
not incurred any liability to the PBGC, and (C) have not had asserted
against them any penalty for failure to fulfill the minimum funding
requirements of ERISA.


 


(ii)           To
the best of the Borrower’s knowledge, each Multiemployer Plan and Multiple
Employer Plan is able to pay benefits thereunder when due.


 


(iii)          Neither
the Borrower nor any other member of the ERISA Group has instituted or intends
to institute proceedings to terminate any Plan.


 


(iv)          No
event requiring notice to the PBGC under Section 302(f)(4)(A) of
ERISA has occurred or is reasonably expected to occur with respect to any Plan,
and no amendment with respect to which security is required under Section 307
of ERISA has been made or is reasonably expected to be made to any Plan.


 


(v)           The
aggregate actuarial present value of all benefit liabilities (whether or not
vested) under each Plan, determined on a plan termination basis, as disclosed
in, and as of the date of, the most recent actuarial report for such Plan, does
not exceed the aggregate fair market value of the assets of such Plan; provided,
however, that the Ohio retiree health plan has no assets, but the
liability for such plan is carried on the books of the Borrower, which such
liability would not reasonably be expected to result in any Material Adverse
Change.


 


(vi)          Neither
the Borrower nor any other member of the ERISA Group has incurred or reasonably
expects to incur any material withdrawal liability under ERISA to any
Multiemployer Plan or Multiple Employer Plan. 
Neither the Borrower nor any other member of the ERISA Group has been
notified by any Multiemployer Plan or Multiple Employer Plan that such
Multiemployer Plan or Multiple Employer Plan has been terminated within the
meaning of Title IV of ERISA and, to the best knowledge of the Borrower, no
Multiemployer Plan or Multiple Employer Plan is reasonably expected to be
reorganized or terminated, within the meaning of Title IV of ERISA.


 


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(vii)         To
the extent that any Benefit Arrangement is insured, the Borrower and all other
members of the ERISA Group have paid when due all premiums required to be paid
for all periods through the Closing Date. 
To the extent that any Benefit Arrangement is funded other than with
insurance, the Borrower and all other members of the ERISA Group have made when
due all contributions required to be paid for all periods through the Closing
Date.


 


(viii)        All
Plans, Benefit Arrangements and Multiemployer Plans have been administered in
accordance with their terms and applicable Law.


 


6.1.23      Employment
Matters.


 


Each of the Loan Parties
and each of their Subsidiaries is in compliance with the Labor Contracts and
all applicable federal, state and local labor and employment Laws including
those related to equal employment opportunity and affirmative action, labor
relations, minimum wage, overtime, child labor, medical insurance continuation,
worker adjustment and relocation notices, immigration controls and worker and
unemployment compensation, where the failure to comply would constitute a
Material Adverse Change.  There are no
outstanding grievances, arbitration awards or appeals therefrom arising out of
the Labor Contracts or current or threatened strikes, picketing, handbilling or
other work stoppages or slowdowns at facilities of any of the Loan Parties
or any of their Subsidiaries which in any case would constitute a Material
Adverse Change.  The Borrower has
delivered to the Agent true and correct copies of each of the Labor Contracts.


 


6.1.24      Environmental
Matters.


 


Except for those items
disclosed on Schedule 6.1.24:


 


(i)            Except
for matters that, considered either individually or in the aggregate, have no
reasonable likelihood of materially disrupting the projected mining operations
of the Loan Parties or resulting in any substantial obligation to the Loan
Parties or otherwise resulting in a Material Adverse Change, none of the Loan
Parties has received any Environmental Complaint, which remains outstanding, or
has any reason to believe that it might receive an Environmental Complaint
which either individually or in the aggregate might materially disrupt the
projected mining operations of the Loan Parties or result in any substantial
obligation to the Loan Parties or otherwise result in a Material Adverse
Change.


 


(ii)           No
activity of any Loan Party on the Property is being or has been conducted, in
violation of any Environmental Law or Required Environmental Permit and to the
knowledge of any Loan Party no activity of any prior owner, operator or
occupant of the Property was conducted in violation of any Environmental Law,
except for activities that, considered either individually or in the aggregate,
have no reasonable likelihood of materially disrupting the projected mining
operations of the Loan Parties or resulting in any substantial obligation to
the Loan Parties or otherwise resulting in a Material Adverse Change.


 


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(iii)          To the knowledge of each Loan Party,
there are no Regulated Substances present on, in, under, or emanating from, or
to, the Property or any portion thereof which will result in Contamination
except for such Regulated Substances that have no reasonable likelihood of
materially disrupting the projected mining operations of the Loan Parties or
resulting in any substantial obligation to the Loan Parties or otherwise resulting
in a Material Adverse Change.


 


(iv)          Each Loan Party has all Required
Environmental Permits and all such Required Environmental Permits are in full
force and effect, except where the failure to have any Required Environmental
Permits, either in any one case or considered together with other such
failures, has no reasonable likelihood of materially disrupting the projected
mining operations of the Loan Parties or resulting in any substantial
obligation to the Loan Parties or otherwise resulting in a Material Adverse
Change.


 


(v)           Each
Loan Party has submitted to an Official Body and/or maintains, as appropriate,
all Required Environmental Notices, except for Required Environmental Notices
that have no reasonable likelihood of materially disrupting the projected
mining operations of the Loan Parties or resulting in any substantial
obligation to the Loan Parties or otherwise resulting in a Material Adverse
Change.


 


(vi)          To
the knowledge of each Loan Party, no structures, improvements, equipment,
fixtures, impoundments, pits, lagoons or aboveground or underground storage
tanks located on the Property contain or use Regulated Substances except (A) in
compliance with Environmental Laws and Required Environmental Permits or (B) where
the improper presence or use of Regulated Substances have no reasonable
likelihood of materially disrupting the projected mining operations of the Loan
Parties or resulting in any substantial obligation to the Loan Parties or
otherwise resulting in a Material Adverse Change.  To the knowledge of each Loan Party, no
structures, improvements, equipment, fixtures, impoundments, pits, lagoons or
aboveground or underground storage tanks of prior owners, operators or
occupants of the Property contained or used, except in material compliance with
Environmental Laws, Regulated Substances or otherwise were operated or
maintained by any such prior owner, operator or occupant except in compliance
in all material respects with Environmental Laws.


 


(vii)         To
the knowledge of each Loan Party, no facility or site to which any Loan Party,
either directly or indirectly by a third party, has sent Regulated Substances
for storage, treatment, disposal or other management has been or is being
operated in violation of Environmental Laws or pursuant to Environmental Laws
is identified or proposed to be identified on any list of contaminated
properties or other properties which pursuant to Environmental Laws are the
subject of an investigation, cleanup, removal, remediation or other response
action by an Official Body except where such violation, either alone or
considered together with all other such violations, has no reasonable
likelihood of materially disrupting the projected mining operations of the Loan
Parties or resulting in any substantial obligation to the Loan Parties or
otherwise resulting in a Material Adverse Change.


 


(viii)        No
portion of the Property is identified or to the knowledge of any Loan Party
proposed to be identified on any list of contaminated properties or other
properties 


 


52

















 


which pursuant to Environmental Laws are the subject
of an investigation or remediation action by an Official Body, nor to the
knowledge of any Loan Party is any property adjoining or in the proximity of
the Property identified or proposed to be identified on any such list.


 


(ix)           No
portion of the Property is identified or to the knowledge of any Loan Party
proposed to be identified on any list of contaminated properties or other
properties which pursuant to Environmental Laws are the subject of an
investigation or remediation action by an Official Body, nor to the knowledge
of any Loan Party is any property adjoining or in the proximity of the Property
identified or proposed to be identified on any such list.


 


(x)            No
portion of the Property constitutes an Environmentally Sensitive Area, except
for portions of the Property that have no reasonable likelihood of materially
disrupting the projected mining operations of the Loan Parties or resulting in
any substantial obligation to the Loan Parties or otherwise resulting in a
Material Adverse Change.


 


(xi)           No
Lien or other encumbrance authorized by Environmental Laws exists against the
Property and none of the Loan Parties has any reason to believe that such a
Lien or encumbrance may be imposed.


 


6.1.25                                  Bonding
Capacity.


 


Each of the Loan
Parties has a sufficient mine bonding capacity to conduct its operations as
projected in accordance with the Financial Projections provided to the Agent.


 


6.1.26                                  Permit
Blockage.


 


No Loan Party has been
barred for a period in excess of fourteen (14) consecutive days from receiving
surface mining or underground mining permits pursuant to the permit block
provisions of the Surface Mining Control and Reclamation Act, 30 U.S.C.
§§ 1201 et seq., and the regulations promulgated
thereto, or any corresponding state laws or regulations.


 


6.1.27                                  Security
Interests.


 


The Liens granted to the
Agent for the benefit of the Lenders pursuant to the Patent, Trademark and
Copyright Security Agreement, the Pledge Agreements and the Security Agreements
in the Collateral (other than the Property) constitute and will continue to
constitute, subject to filing of all necessary financing statements in
compliance with applicable Law as hereinafter provided, Prior Security
Interests under the Uniform Commercial Code as in effect in each applicable
jurisdiction (the “Uniform Commercial Code”) or other applicable Law entitled
to all the rights, benefits and priorities provided by the Uniform Commercial
Code or such Law, subject to Permitted Liens. 
Upon the filing of financing statements relating to said security
interests in each office and in each jurisdiction where required in order to
perfect the security interests described above, taking possession of any stock
certificates or other certificates evidencing the Pledged Collateral and
recordation of the Patent, Trademark and Copyright Security Agreement in the
United States Patent and Trademark Office and United States Copyright Office,
as applicable, all such action as is necessary or advisable to establish such 


 


53

















 


rights of the
Agent will have been taken, and there will be upon execution and delivery of
the Patent, Trademark and Copyright Security Agreement, the Pledge Agreements
and the Security Agreements, such filings and such taking of possession, no
necessity for any further action in order to preserve, protect and continue
such rights, except the filing of continuation statements with respect to such
financing statements within six (6) months prior to each five (5) year
anniversary of the filing of such financing statements.  All filing fees and other expenses in
connection with each such action have been or will be paid by the Borrower.


 


6.1.28                                  Mortgage
Liens.


 


The Liens on all Property
of each Loan Party and each Subsidiary of each Loan Party, other than any
Property described on Schedule 6.1.28 (the “Excluded Property”), granted
to the Agent for the benefit of the Lenders pursuant to the Mortgages
constitute a valid first priority Lien under applicable Law, subject to
Permitted Liens.  All such action as will
be necessary or advisable to establish such Lien of the Agent and its priority
as described in the preceding sentence will be taken at or prior to the time
required for such purpose, and there will be as of the date of execution,
delivery and recordation of the Mortgages in the applicable recording office of
each county where the Property described therein is located, no necessity for
any further action in order to protect, preserve and continue such Lien and
such priority.


 


6.1.29                                  Status
of the Pledged Collateral.


 


All the Subsidiary
Shares, Partnership Interests, LLC Interests or the member interests of the
Borrower included in the Pledged Collateral to be pledged pursuant to the
Pledge Agreements are or will be upon issuance validly issued and nonassessable
or not subject to additional contribution obligations, as the case may be, and
owned beneficially and of record by the pledgor free and clear of any Lien or restriction
on transfer, except as otherwise provided by the Pledge Agreements and this
Agreement and except as the right of the Lenders to dispose of the Subsidiary
Shares, Partnership Interests, LLC Interests or member interests of the
Borrower may be limited by the Securities Act of 1933, as amended, and the
regulations promulgated by the Securities and Exchange Commission thereunder
and by applicable state securities laws. 
There are no shareholder, partnership, limited liability company or
other agreements or understandings with respect to the Subsidiary Shares,
Partnership Interests, LLC Interests or member interests of the Borrower
included in the Pledged Collateral except for the partnership agreements and
limited liability company agreements described on Schedule 6.1.29.  The Loan Parties have delivered true and
correct copies of such shareholder agreements, partnership agreements, and
limited liability company agreements to the Agent.


 


6.1.30                                  Senior
Debt Status.


 


The Obligations of each
Loan Party under this Agreement, the Notes, the Guaranty Agreement and each of
the other Loan Documents to which it is a party do rank and will rank at least pari
passu in priority of payment with all other Indebtedness of such Loan
Party except Indebtedness of such Loan Party to the extent secured by Permitted
Liens.  There is no Lien upon or with
respect to any of the properties or income of any Loan Party or Subsidiary of 


 


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any Loan Party
which secures indebtedness or other obligations of any Person except for
Permitted Liens.


 


6.1.31      Anti-Terrorism
Laws.


 


6.1.31.1   General.


 


None of the Loan
Parties, nor any Affiliate of any Loan Party, is in violation of any
Anti-Terrorism Law or engages in or conspires to engage in any transaction that
evades or avoids, or has the purpose of evading or avoiding, or attempts to
violate, any of the prohibitions set forth in any Anti-Terrorism Law.


 


6.1.31.2   Executive Order No. 13224.


 


None of the Loan
Parties, nor any Affiliate of any Loan Party, or their respective agents acting
or benefiting in any capacity in connection with the Loans, Letters of Credit
or other transactions hereunder, is any of the following (each a “Blocked
Person”):


 


(i)            a
Person that is listed in the annex to, or is otherwise subject to the
provisions of, the Executive Order No. 13224;


 


(ii)           a
Person owned or controlled by, or acting for or on behalf of, any Person that
is listed in the annex to, or is otherwise subject to the provisions of, the
Executive Order No. 13224;


 


(iii)          a
Person or entity with which any Lender is prohibited from dealing or otherwise
engaging in any transaction by any Anti-Terrorism Law;


 


(iv)          a
Person or entity that commits, threatens or conspires to commit or supports “terrorism”
as defined in the Executive Order No. 13224;


 


(v)           a
Person or entity that is named as a “specially designated national” on the most
current list published by the U.S. Treasury Department Office of Foreign Asset
Control at its official website or any replacement website or other replacement
official publication of such list, or


 


(vi)          a
person or entity who is affiliated or associated with a person or entity listed
above.


 


No Loan Party or
to the knowledge of any Loan Party, any of its agents acting in any capacity in
connection with the Loans, Letters of Credit or other transactions
hereunder:  (i) conducts any
business or engages in making or receiving any contribution of funds, goods or
services to or for the benefit of any Blocked Person, or (ii) deals in, or
otherwise engages in any transaction relating to, any property or interests in
property blocked pursuant to the Executive Order No. 13224.


 


55

















 


6.2                   Updates
to Schedules.


 


Should any of the
information or disclosures provided on any of the Schedules attached hereto
become outdated or incorrect in any material respect, the Borrower shall
promptly provide the Agent in writing with such revisions or updates to such
Schedule as may be necessary or appropriate to update or correct same; provided,
however, that no Schedule shall be deemed to have been amended, modified or
superseded by any such correction or update, nor shall any breach of warranty
or representation resulting from the inaccuracy or incompleteness of any such
Schedule be deemed to have been cured thereby, unless and until the Required
Lenders, in their sole and absolute discretion, shall have accepted in writing
such revisions or updates to such Schedule.


 


7.             CONDITIONS OF
LENDING AND ISSUANCE OF LETTERS OF CREDIT


 


The obligation of
each Lender to make Loans and of the Issuing Lender to issue Letters of Credit
hereunder is subject to the performance by each of the Loan Parties of its
Obligations to be performed hereunder at or prior to the making of any such
Loans or issuance of such Letters of Credit and to the satisfaction of the
following further conditions:


 


7.1                   First
Loans and Letters of Credit.


 


On the Closing
Date:


 


7.1.1        Officer’s
Certificate.


 


The representations and
warranties of each of the Loan Parties contained in Section 6 and in each
of the other Loan Documents shall be true and accurate on and as of the Closing
Date with the same effect as though such representations and warranties had
been made on and as of such date (except representations and warranties which
relate solely to an earlier date or time, which representations and warranties
shall be true and correct on and as of the specific dates or times referred to
therein), and each of the Loan Parties shall have performed and complied with
all covenants and conditions hereof and thereof, no Event of Default or
Potential Default shall have occurred and be continuing or shall exist; and
there shall be delivered to the Agent for the benefit of each Lender a
certificate of each of the Loan Parties, dated the Closing Date and signed by
the Chief Executive Officer, President or Chief Financial Officer of each of
the Loan Parties, to each such effect.


 


7.1.2        Secretary’s
Certificate.


 


There shall be delivered
to the Agent for the benefit of each Lender a certificate dated the Closing
Date and signed by the Secretary or an Assistant Secretary of each of the Loan
Parties, certifying as appropriate as to:


 


(i)            all
action taken by each Loan Party in connection with this Agreement and the other
Loan Documents;


 


56














 


(ii)           the
names of the officer or officers authorized to sign this Agreement and the
other Loan Documents and the true signatures of such officer or officers and
specifying the Authorized Officers permitted to act on behalf of each Loan
Party for purposes of this Agreement and the true signatures of such officers,
on which the Agent and each Lender may conclusively rely; and


 


(iii)          copies of its organizational documents,
including its certificate of incorporation, bylaws, certificate of limited
partnership, partnership agreement, certificate of formation, and limited
liability company agreement as in effect on the Closing Date certified by the
appropriate state official where such documents are filed in a state office
together with certificates from the appropriate state officials as to the
continued existence and good standing of each Loan Party in each state where
organized or qualified to do business and a bring-down certificate by facsimile
dated the Closing Date.


 


7.1.3        Delivery
of Loan Documents.


 


This Agreement,
the Guaranty Agreement, the Indemnity, the Mortgages, the Notes, the Patent,
Trademark and Copyright Security Agreement, the Pledge Agreements, the
Intercompany Subordination Agreement, the Wexford Subordination Agreement, and
the Security Agreements, and all other Loan Documents, shall have been duly
executed and delivered to the Agent for the benefit of the Lenders, together
with all appropriate financing statements and appropriate stock powers and
certificates evidencing the Subsidiary Shares, the Partnership Interests and
the LLC Interests.


 


7.1.4        Opinion
of Counsel.


 


7.1.4.1               There
shall be delivered to the Agent for the benefit of each Lender a written
opinion of Frost Brown Todd LLC, counsel for the Loan Parties (who may rely on
the opinions of such other counsel as may be acceptable to the Agent), dated
the Closing Date and in form and substance satisfactory to the Agent and its
counsel:  (i) in substantially the
form of Exhibit 7.1.4(A) and (ii) as to such other
matters incident to the transactions contemplated herein as the Agent may
reasonably request.


 


7.1.4.2               In
addition, there shall also be delivered to the Agent for the benefit of each
Lender, written opinions of local counsel selected by the Loan Parties and
reasonably acceptable to the Agent regarding real estate and other matters,
dated the Closing Date and in form and substance reasonably satisfactory to the
Agent and its counsel:  (i) in
substantially the form of Exhibit 7.1.4(B) and (ii) as to
such other matters incident to the transactions contemplated herein as the
Agent may reasonably request.


 


7.1.4.3               In
addition, there shall also be delivered to the Agent for the benefit of each
Lender, a written opinion of Arthur Amron, General Counsel of Wexford, dated
the Closing Date and in form and substance reasonably satisfactory to the Agent
and its counsel:  (i) in
substantially the form of Exhibit 7.1.4(C) and (ii) as to
such other matters incident to the transactions contemplated herein as the
Agent may reasonably request.


 


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7.1.5        Legal
Details.


 


All legal details and
proceedings in connection with the transactions contemplated by this Agreement
and the other Loan Documents shall be in form and substance satisfactory to the
Agent and counsel for the Agent, and the Agent shall have received all such
other counterpart originals or certified or other copies of such documents and
proceedings in connection with such transactions, in form and substance
satisfactory to the Agent and said counsel, as the Agent or said counsel may
reasonably request.


 


7.1.6        Payment
of Fees.


 


The Borrower shall have
paid or caused to be paid to the Agent for itself and for the account of the
Lenders to the extent not previously paid all fees accrued through or otherwise
payable on the Closing Date and the costs and expenses for which the Agent and
the Lenders are entitled to be reimbursed.


 


7.1.7        Environmental Matters.


 


The Loan Parties shall
provide the Agent with such existing environmental assessments as requested by
the Agent.  On the Closing Date, the
appropriate officers of the applicable Loan Parties shall have delivered to the
Agent in form and substance satisfactory to the Agent a certificate to the
effect that the Loan Parties have made known to the Agent all information known
to them and their Subsidiaries concerning environmental conditions and
Environmental Complaints and the Loan Parties and their Subsidiaries’
compliance with the Environmental Laws relating to any of the Property and any
other site for which any Loan Party or Subsidiary of a Loan Party has received
notice that it is potentially responsible for any environmental conditions.


 


7.1.8        Capitalization of Borrower.


 


With respect to each Loan
Party and each Subsidiary of each Loan Party, the capital structure, ownership,
organization documents (including articles or certificate of incorporation,
certificate of limited partnership, certificate of limited liability company,
bylaws, partnership agreements, and limited liability company agreements),
shareholder agreements or similar agreements among equity owners shall be
reasonably satisfactory, in form and substance, to the Agent.  The Agent shall have received true and
complete copies of all of the material acquisition documents related to all
acquisitions consummated by the Borrower and any other Loan Party or Subsidiary
of any Loan Party prior to the Closing Date.


 


7.1.9        Consents.


 


All material consents
required to effectuate the transactions contemplated hereby as set forth on Schedule
6.1.13 shall have been obtained.


 


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7.1.10      Officer’s Certificate Regarding MACs.


 


Since March 31,
2006, no Material Adverse Change shall have occurred; prior to the Closing
Date, there shall have been no material change in the management of any Loan
Party or Subsidiary of any Loan Party; and, there shall have been delivered to
the Agent for the benefit of each Lender a certificate dated the Closing Date
and signed by the Chief Executive Officer, President or Chief Financial Officer
of each Loan Party to each such effect. After giving effect to the consummation
of the transactions contemplated by the Loan Documents, the Loans to be made
and the Letters of Credit to be issued on the Closing Date, no Material Adverse
Change shall have occurred.


 


7.1.11      No Violation of Laws.


 


The making of the Loans
and the issuance of the Letters of Credit shall not contravene any Law
applicable to any Loan Party or any of the Lenders.


 


7.1.12      No Actions or Proceedings.


 


No action, proceeding,
investigation, regulation or legislation shall have been instituted, threatened
or proposed before any court, governmental agency or legislative body to
enjoin, restrain or prohibit, or to obtain damages in respect of, this
Agreement, the other Loan Documents, or the consummation of the transactions
contemplated hereby or thereby or which, in the Agent’s sole discretion, would
make it inadvisable to consummate the transactions contemplated by this
Agreement or any of the other Loan Documents.


 


7.1.13      Insurance Policies; Certificates of Insurance;
Endorsements.


 


The Loan Parties shall
have delivered evidence acceptable to the Agent that adequate insurance in
compliance with Section 8.1.3 [Maintenance of Insurance], and with other
provisions of applicable Loan Documents, is in full force and effect and that
all premiums then due thereon have been paid, together with a certified copy of
each Loan Party’s casualty insurance policy or policies evidencing coverage
satisfactory to the Agent, with additional insured, mortgagee and lender loss
payable special endorsements attached thereto in form and substance
satisfactory to the Agent and its counsel naming the Agent as additional
insured, mortgagee, and lender loss payee.


 


7.1.14      UCC, Lien and Judgment Searches; Title Reports.


 


The Agent shall have
received lien, litigation, tax lien, judgment and Uniform Commercial Code
searches against each Loan Party, each Subsidiary of each Loan Party and each
Person pledging or required to pledge ownership interests in any Loan Party, in
each case in the jurisdiction of each such Person’s formation and in each
jurisdiction where a lien or security interest could legally be filed against
the Collateral; and, the results of such searches shall be satisfactory in
form, scope and substance to the Agent.


 


The Loan Parties shall
deliver record owner and lien title reports acceptable to the Agent, confirming
among other matters, that the Property is free and clear of all


 


59

















 


Liens, subject
only to Permitted Liens and such other exceptions as may be approved in writing
by the Agent.


 


7.1.15      Sources and Uses.


 


The Borrower shall have
provided to the Agent for the benefit of the Lenders a definitive schedule of
sources and uses of funds in connection with the transactions contemplated by
the Loan Documents.


 


7.1.16      Filing Receipts.


 


The Agent shall have
received:  (i) copies of all filing
receipts and acknowledgments issued by any governmental authority to evidence
any recordation or filing necessary to perfect the Liens of the Lenders on the
Collateral or other satisfactory evidence of such recordation and filing and (ii) evidence
in a form acceptable to the Agent that all such Liens constitute a Prior
Security Interest in favor of the Lenders and, in the case of the Mortgages, a
valid and perfected first priority Lien.


 


7.1.17      Administrative Questionnaire.


 


Each of the Lenders and
the Borrower shall have completed and delivered to the Agent the Agent’s form
of administrative questionnaire.


 


7.1.18      Financial Statements.


 


The Agent shall have
received:  (i) the Financial
Projections, and (ii) copies of the Loan Parties’ consolidated audited
year-end financial statements for and as of the three (3) fiscal years
ended March 31, 2006, together with copies of the unqualified reports of
independent certified public accountants that conducted such audits.


 


7.1.19      Termination of Existing Loan Agreements.


 


The Borrower shall have
delivered to the Agent payoff letters from each lender with an existing
financing arrangement with the Borrower or any other Loan Party, as set forth
on Schedule 7.1.19 (collectively, the “Existing Debt”) and the following
actions shall occur to the satisfaction of the Agent in its sole
discretion:  (i) all principal, interest,
fees and other liabilities and obligations under the Existing Debt shall be
repaid in full, (ii) all commitments to lend under the Existing Debt shall
have been irrevocably terminated and of no further force and effect, and (iii) all
Liens securing any Existing Debt shall be terminated and released.


 


7.1.20      Solvency Certificate.


 


The Chief Financial
Officer of the Borrower shall have delivered a certificate in form and
substance satisfactory to the Agent as to the capital adequacy and solvency of
the Loan Parties after giving effect to the transactions contemplated hereby.


 


60

















 


7.1.21      Lessor’s Consents.


 


The Loan Parties shall
have delivered consents allowing for, among other things, a Lien to be obtained
upon such leases, from the lessors under any Material Leases (including Coal
Reserves and facilities) required by the Agent, in its sole discretion, to have
such consents, which such consents shall be in form and substance acceptable to
the Agent.


 


7.1.22      Satisfactory Coal Reserves and Facilities;
Other Due Diligence.


 


The Agent and the Lenders
shall have received from an independent third-party engineering consultant
(satisfactory to the Agent in all respects) a report as to the type, nature,
amount and value of the Loan Parties’ Coal Reserves, the financial and
operating condition of the Loan Parties’ mines and other operations which are
the subject of the Financial Projections, and as to such other matters as the
Agent or any Lender may request, and such report shall be satisfactory in form,
substance and scope to the Agent and the Lenders in all respects.


 


7.1.23      Appraisals; Flood Insurance.


 


The Agent shall have
received appraisals or valuations of the Loan Parties’ and their Subsidiaries’
assets as the Agent may require in form and substance satisfactory to the Agent
in all respects.


 


The Agent shall have
received appraisals or valuations performed by: 
(i) Marshall Miller & Associates, Inc. of the amount
and value of the Coal Reserves of the Loan Parties, and (ii) Darco Energy
Management Corporation of the plant, equipment, and infrastructure of the Loan
Parties; and, each such report shall be satisfactory in form and substance to
the Agent in all respects.


 


The Agent shall have
received such information and, without limiting the requirements of Section 7.1.13
[Insurance Policies; Certificates of Insurance; Endorsements], flood insurance
determinations as to any Property located in an area identified by the Federal
Emergency Management Agency as an area having special flood hazards in
compliance with the National Flood Insurance Act of 1968 and the Flood Disaster
Protection Act of 1973 (and any amendments thereto or successor Laws), and all
applicable rules and regulations promulgated with respect thereto.


 


7.2                   Each Additional Loan or
Letter of Credit.


 


At the time of
making any Loans or issuing any Letters of Credit other than Loans made or
Letters of Credit issued on the Closing Date and after giving effect to the
proposed extensions of credit:  the representations
and warranties of the Loan Parties contained in Section 6 and in the other
Loan Documents shall be true on and as of the date of such additional Loan or
Letter of Credit with the same effect as though such representations and
warranties had been made on and as of such date (except representations and
warranties which expressly relate solely to an earlier date or time, which
representations and warranties shall be true and correct on and as of the
specific dates or times referred to therein) and the Loan Parties shall have
performed and complied with all covenants and conditions hereof; no Event of
Default or


 


61

















 


Potential Default shall have occurred and be continuing or shall exist;
the making of the Loans or issuance of such Letter of Credit shall not
contravene any Law applicable to any Loan Party or Subsidiary of any Loan Party
or any of the Lenders; and the Borrower shall have delivered to the Agent a
duly executed and completed Loan Request or to the Issuing Lender an
application for a Letter of Credit, as the case may be.


 


8.     COVENANTS


 


8.1                   Affirmative
Covenants.


 


The Loan Parties,
jointly and severally, covenant and agree that until payment in full of the
Loans, Reimbursement Obligations and Letter of Credit Borrowings, and interest
thereon, expiration or termination of all Letters of Credit, satisfaction of
all of the Loan Parties’ other Obligations under the Loan Documents and
termination of the Commitments, the Loan Parties shall comply at all times with
the following affirmative covenants:


 


8.1.1        Preservation of Existence, Etc.


 


The Borrower shall, and
shall cause each of its Subsidiaries to, maintain its legal existence as a
corporation, limited partnership or limited liability company and its license
or qualification and good standing in each jurisdiction in which its ownership
or lease of property or the nature of its business makes such license or
qualification necessary, except as otherwise expressly permitted in Section 8.2.6
[Liquidations, Mergers, Etc.].


 


8.1.2        Payment of Liabilities, Including Taxes, Etc.


 


The Borrower shall, and
shall cause each of its Subsidiaries to, duly pay and discharge all liabilities
to which it is subject or which are asserted against it, promptly as and when
the same shall become due and payable, including all taxes,  assessments
and governmental charges upon it or any of its properties, assets, income or
profits, prior to the date on which penalties attach thereto, except to the
extent that such liabilities, including taxes, assessments or charges, are
being contested in good faith and by appropriate and lawful proceedings
diligently conducted and for which such reserve or other appropriate
provisions, if any, as shall be required by GAAP shall have been made, but only
to the extent that failure to discharge any such liabilities would not result
in any additional liability which would adversely affect to a material extent
the financial condition of the Loan Parties and their Subsidiaries, taken as a
whole, provided that the Loan Parties and their Subsidiaries will pay
all such liabilities forthwith upon the commencement of proceedings to
foreclose any Lien which may have attached as security therefor.


 


8.1.3        Maintenance of Insurance.


 


The Borrower shall, and
shall cause each of its Subsidiaries to, insure its properties and assets
against loss or damage by fire and such other insurable hazards as such assets
are commonly insured (including fire, extended coverage, property damage,
workers’ compensation, public liability and business interruption insurance)
and against other risks


 


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(including errors
and omissions) in such amounts as similar properties and assets are insured by
prudent companies in similar circumstances carrying on similar businesses, and
with reputable and financially sound insurers, including self-insurance to the
extent customary, all as reasonably determined by the Agent.  At the request of the Agent, the Borrower
shall deliver to the Agent and each of the Lenders:  (i) an original certificate of insurance
signed by the Loan Parties’ independent insurance broker describing and
certifying as to the existence of the insurance required to be maintained by
this Agreement and the other Loan Documents and (ii) from time to time a
summary schedule indicating all insurance then in force with respect to each of
the Loan Parties.


 


8.1.4        Maintenance of Properties and Leases.


 


The Borrower shall, and
shall cause each of its Subsidiaries to, maintain in good repair, working order
and condition (ordinary wear and tear excepted) in accordance with the general
practice of other businesses of similar character and size, all of those
properties useful or necessary to its business, and from time to time, such
Loan Party will make or cause to be made all appropriate repairs, renewals or
replacements thereof.


 


8.1.5        Maintenance of Patents, Trademarks, Etc.


 


The Borrower shall, and
shall cause each of its Subsidiaries to, maintain in full force and effect all
patents, trademarks, service marks, trade names, copyrights, licenses,
franchises, permits and other authorizations necessary for the ownership and
operation of its properties and business if the failure so to maintain the same
would constitute a Material Adverse Change.


 


8.1.6        Visitation Rights.


 


Each Loan Party shall,
and shall cause each of its Subsidiaries to, permit any of the officers or
authorized employees or representatives of the Agent or any of the Lenders to
visit and inspect any of its properties and to examine and make excerpts from
its books and records and discuss its business affairs, finances and accounts
with its officers, all in such detail and at such times and as often as any of
the Lenders may reasonably request, provided  that, in the absence
of any Event of Default, each Lender shall provide the Borrower and the Agent
with reasonable notice prior to any visit or inspection.  In the event any Lender desires to conduct an
audit of any Loan Party, such Lender shall make a reasonable effort to conduct
such audit contemporaneously with any audit to be performed by the Agent.


 


8.1.7        Keeping of Records and Books of Account.


 


The Borrower shall, and
shall cause each Subsidiary of the Borrower to, maintain and keep proper books
of record and account which enable the Borrower and its Subsidiaries to issue
financial statements in accordance with GAAP and as otherwise required by
applicable Laws of any Official Body having jurisdiction over the Borrower or
any Subsidiary of the Borrower, and in which full, true and correct entries
shall be made in all material respects of all its dealings and business and
financial affairs.


 


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8.1.8        Plans and Benefit Arrangements.


 


The Borrower shall, and
shall cause each other member of the ERISA Group to, comply with ERISA, the
Internal Revenue Code and other applicable Laws applicable to Plans and Benefit
Arrangements except where such failure, alone or in conjunction with any other
failure, would not result in a Material Adverse Change.  Without limiting the generality of the
foregoing, the Borrower shall cause all of its Plans and all Plans maintained
by any member of the ERISA Group to be funded in accordance with the minimum
funding requirements of ERISA and shall make, and cause each member of the
ERISA Group to make, in a timely manner, all contributions due to Plans,
Benefit Arrangements and Multiemployer Plans.


 


8.1.9        Compliance with Laws.


 


The Borrower shall, and
shall cause each of its Subsidiaries to, comply with all applicable Laws,
including all Environmental Laws, in all respects, provided that it
shall not be deemed to be a violation of this Section 8.1.9 if any failure
to comply with any Law would not result in fines, penalties, remediation costs,
other similar liabilities or injunctive relief which in the aggregate would
constitute a Material Adverse Change.


 


8.1.10      Use of Proceeds.


 


(i)            The proceeds of the
Revolving Credit Loans will be used by the Borrower solely to repay Existing
Debt and for general corporate, limited liability company or partnership
purposes of the Borrower and its Subsidiaries, including for working capital,
capital expenditures, distributions permitted hereunder, and for Permitted
Acquisitions.


 


(ii)           The Letters of Credit
will be used for general business purposes in the ordinary course of business.


 


(iii)          The Loan Parties shall
not use the Letters of Credit or the proceeds of the Loans for any purposes
which contravenes any applicable Law or any provision hereof.


 


8.1.11      Further Assurances.


 


To the extent that a Lien
is granted to the Agent in accordance with this Agreement, each Loan Party
shall, from time to time, at its expense, faithfully preserve and protect the
Agent’s Lien on and Prior Security Interest in the Collateral as a continuing
first priority perfected Lien, subject only to Permitted Liens, and shall do
such other acts and things as the Agent in its sole discretion may deem
necessary or advisable from time to time in order to preserve, perfect and
protect the Liens granted under the Loan Documents and to exercise and enforce
its rights and remedies thereunder with respect to the Collateral.


 


8.1.12      Subordination of Intercompany Loans.


 


Each Loan Party shall
cause any intercompany Indebtedness, loans or advances owed by any Loan Party
to:  (i) any other Loan Party to be
subordinated pursuant to the


 


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terms of the
Intercompany Subordination Agreement or (ii) Wexford to be subordinated
pursuant to the terms of the Wexford Subordination Agreement.


 


8.1.13      Anti-Terrorism Laws.


 


The Loan Parties and
their respective Affiliates and agents shall not:  (i) conduct any business or engage in
any transaction or dealing with any Blocked Person, including the making or
receiving any contribution of funds, goods or services to or for the benefit of
any Blocked Person, (ii) deal in, or otherwise engage in any transaction
relating to, any property or interests in property blocked pursuant to the
Executive Order No. 13224, or (iii) engage in or conspire to engage
in any transaction that evades or avoids, or has the purpose of evading or
avoiding, or attempts to violate, any of the prohibitions set forth in the
Executive Order No. 13224, the USA Patriot Act or any other Anti-Terrorism
Law.  The Borrower shall deliver to
Lenders any certification or other evidence requested from time to time by any
Lender in its sole discretion, confirming Borrower’s compliance with this Section 8.1.13.


 


8.1.14                  Collateral
and Additional Collateral, Etc.


 


(i)            Pursuant to the Loan
Documents, the Loan Parties shall grant, or cause to be granted, to the Agent,
for the benefit of the Lenders, a first priority security interest in and Lien
on, subject only to Permitted Liens, (A) all Collateral, (B)  all
equity interests of the Loan Parties, and (C) all other assets of the Loan
Parties or any Subsidiary of any Loan Party, whether owned on the Closing Date
or subsequently acquired except those assets subject to capitalized leases or
Purchase Money Security Interests and the Excluded Properties.


 


(ii)           Without limiting the
generality of clause (a) of this Section 8.1.14, with respect to any
Property (other than Property located in Colorado or Illinois) acquired after
the Closing Date by the Borrower, any other Loan Party or any Subsidiary of any
Loan Party as to which the Agent, for the benefit of the Lenders, does not have
a perfected Lien, promptly and, in any event, within five (5) Business
Days of the acquisition thereof, the Borrower, such Loan Party or such
Subsidiary, as applicable, shall, at its expense:  (i) execute and deliver to the Agent
such Security Documents or such amendments to such Security Documents as the
Agent deems necessary or advisable to grant to the Agent, for the benefit of
the Lenders, a first priority Lien in such Property, subject only to Permitted
Liens, (ii) take all actions necessary or advisable to grant to the Agent,
for the benefit of the Lenders, a perfected first priority Lien and security
interest on such Property (subject only to Permitted Liens), including the
filing of Mortgages and Uniform Commercial Code financing statements in such
jurisdictions as may be required by the Security Documents or by Law or as may
be requested by the Agent and (iii) deliver to the Agent such legal
opinions relating to the matters described in clauses (i) and (ii) immediately
above, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Agent.


 


(iii)          Without limiting the
generality of clause (i) of this Section 8.1.14, with respect to any
new Subsidiary created or acquired after the Closing Date by the


 


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Borrower, any other Loan
Party or any Subsidiary of any Loan Party, concurrently with such creation or
acquisition, the Borrower, such other Loan Party and/or such Subsidiary, as
applicable, shall:  (i) execute and
deliver to the Agent such amendments to the Security Documents as the Agent
deems necessary or advisable to grant to the Agent, for the benefit of the
Lenders, a perfected first priority Lien in the stock or other ownership
interests in such new Subsidiary, (ii) deliver to the Agent:  (A) the certificates (if any)
representing such stock or other ownership interests, together with undated
powers, in blank, executed and delivered by a duly authorized officer of the
Borrower, any other Loan Party or such Subsidiary, as the case may be, and (B) in
the case of a Subsidiary whose stock or other ownership interests is a security
that is not evidenced by a certificate, an Acknowledgment and Consent,
substantially in the form of Annex I to the applicable
Pledge Agreement, duly executed by any issuer of such stock or other ownership
interests pledged pursuant to such Pledge Agreement, (iii) cause such new
Subsidiary:  (A) to become a party
to the applicable Security Documents and (B) to take such actions
necessary or advisable to grant to the Agent for the benefit of the Lenders a
perfected first priority Lien on the Collateral described in the applicable
Pledge Agreement and applicable Security Agreement and pursuant to a duly
executed Mortgage, such Lien on all Properties of such new Subsidiary (other
than any Property located in Colorado or Illinois), subject in each case to
Permitted Liens, including the filing of Uniform Commercial Code financing
statements in such jurisdictions as may be required by the applicable Pledge
Agreement and applicable Security Agreement, the filing of any Mortgages in
appropriate filing offices and other filings required by Law or as may be requested
by the Agent, and (iv) if requested by the Agent, deliver to the Agent
such legal opinions, relating to the matters described above as the Agent may
request, which opinions shall be in form and substance, and from counsel,
satisfactory to the Agent.


 


8.2                   Negative Covenants.


 


The Loan Parties,
jointly and severally, covenant and agree that until payment in full of the
Loans, Reimbursement Obligations and Letter of Credit Borrowings and interest
thereon, expiration or termination of all Letters of Credit, satisfaction of
all of the Loan Parties’ other Obligations hereunder and termination of the
Commitments, the Loan Parties shall comply with the following negative
covenants:


 


8.2.1        Indebtedness.


 


Each of the Loan Parties
shall not, and shall not permit any of its Subsidiaries to, at any time create,
incur, assume or suffer to exist any Indebtedness, except:


 


(i)            Indebtedness
under the Loan Documents;


 


(ii)           Existing
Indebtedness as set forth on Schedule 8.2.1 (including any extensions or
renewals thereof, provided there is no increase in the amount thereof or
other significant change in the terms thereof unless otherwise specified on Schedule
8.2.1;


 


(iii)          Operating leases;


 


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(iv)          Indebtedness
secured by Purchase Money Security Interests and capital leases not exceeding
$12,500,000 in the aggregate;


 


(v)           Indebtedness
of a Loan Party to another Loan Party or of a Loan Party to Wexford, which is
subordinated in accordance with the provisions of Section 8.1.12
[Subordination of Intercompany Loans];


 


(vi)          performance
Guarantees entered into in the ordinary course of business with respect to the
performance of any obligation of any Subsidiary of Borrower;


 


(vii)         Any
Commodity Hedge, Lender-Provided Interest Rate Hedge, or other Interest Rate
Hedge; and


 


(viii)        other
unsecured Indebtedness of the Loan Parties in an aggregate principal amount not
to exceed  $10,000,000 at any one time
outstanding.


 


8.2.2        Liens.


 


Each of the Loan Parties
shall not, and shall not permit any of its Subsidiaries to, at any time create,
incur, assume or suffer to exist any Lien on any of its property or assets,
tangible or intangible, now owned or hereafter acquired, or agree or become
liable to do so,  except Permitted Liens.


 


8.2.3        Guaranties.


 


Each of the Loan Parties
shall not, and shall not permit any of its Subsidiaries to, at any time,
directly or indirectly, become or be liable in respect of any Guaranty, or
assume, guarantee, become surety for, endorse or otherwise agree, become or
remain directly or contingently liable upon or with respect to any obligation
or liability of any other Person, except for Guaranties of Indebtedness of the
Loan Parties permitted hereunder.


 


8.2.4        Loans
and Investments.


 


Each of the Loan Parties
shall not, and shall not permit any of its Subsidiaries to, at any time make or
suffer to remain outstanding any loan or advance to, or purchase, acquire or
own any stock, bonds, notes or securities of, or any partnership interest (whether
general or limited) or limited liability company interest in, or any other
investment or interest in,  or make any
capital contribution to, any other Person, or agree, become or remain liable to
do any of the foregoing, except:


 


(i)            trade
credit extended on usual and customary terms in the ordinary course of
business;


 


(ii)           advances
to employees to meet expenses incurred by such employees in the ordinary course
of business;


 


(iii)          Permitted
Investments;


 


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(iv)          loans,
advances and investments in other Loan Parties except to the Excluded
Subsidiaries; and


 


(v)           investments
(including any investments in the Excluded Subsidiaries) not otherwise
permitted by this Section 8.2.4  in
an aggregate amount not to exceed $7,500,000 at anytime outstanding.


 


8.2.5        Dividends
and Related Distributions.


 


Each of the Loan Parties
shall not, and shall not permit any of its Subsidiaries to, make or pay, or
agree to become or remain liable to make or pay, any dividend or other
distribution of any nature (whether in cash, property, securities or otherwise)
on account of or in respect of its shares of capital stock, partnership
interests or limited liability company interests on account of the purchase,
redemption, retirement or acquisition of its shares of capital stock (or
warrants, options or rights therefor), partnership interests or limited
liability company interests, except dividends or other distributions payable to
another Loan Party except:


 


(i)            upon ten (10) Business
Days prior notice to the Agent, Borrower may transfer equity interests in any
Excluded Subsidiary, provided, however, (a) that no uncured
Event of Default shall be in existence at the time of such transfer, (b) that
at the time of such transfer, the Loan Parties can demonstrate pro forma
compliance with the covenants after taking into account such transfer by
delivering to the Agent a Compliance Certificate, and (c) that the
Borrower shall deliver any documentation related to such transfer, which such documentation
shall be reasonably satisfactory, in form and substance, to the Agent; and upon
such transfer, such Excluded Subsidiary shall cease to be a Loan Party and
shall be released as a Guarantor, and the pledge of the equity interest therein
and the security interest in after-acquired property of such Excluded
Subsidiary shall be released;


 


(ii)           Tax Distributions,
unless an Event of Default has occurred and is continuing or would be created
thereby; and


 


(iii)          other dividends and
distributions payable by the Borrower to its members in excess of the Tax
Distributions, provided, however, that:  (A) any such dividend or distribution
cannot be made prior to the Tax Distributions permitted in clause (ii) above,
(B) the Borrower shall deliver to the Agent at least five (5) Business
Days before such proposed dividend or distribution a certificate of the
Borrower in substantially the form of Exhibit 8.3.4
evidencing:  (x) pro forma
compliance with a Leverage Ratio (measured as of the date of the dividend or
distribution immediately after giving effect to such dividend or distribution
and based upon Consolidated EBITDA for the four (4) fiscal quarters then
ended) of less than 1.5 to 1.0, and (y) that the Borrower shall have,
after giving effect to any such proposed dividend or distribution, at least
$25,000,000 of Availability, and (C) at the time of any such dividend or
distribution, no Event of Default or Potential Default shall exist or shall
result after giving effect thereto. 
Notwithstanding the foregoing, the aggregate amount of any such
dividends and distributions permitted under this clause (iii) that occurs
prior to a Tax Distribution, shall be subtracted from the total amount
available for Tax Distributions for such fiscal period.


 


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8.2.6        Liquidations,
Mergers, Consolidations, Acquisitions.


 


Each of the Loan Parties
shall not, and shall not permit any of its Subsidiaries to, dissolve, liquidate
or wind-up its affairs, or become a party to any merger or consolidation, or
acquire by purchase, lease or otherwise all or substantially all of the assets
or capital stock of any other Person, provided that


 


(1)           any Loan Party other than the
Borrower may consolidate or merge into another Loan Party (not including the
Excluded Subsidiaries) which is wholly-owned by one or more of the other Loan
Parties, and


 


(2)           any 
Loan Party may acquire, whether by purchase or by merger, (A) all
of the ownership interests of another Person or (B) substantially all of
the assets of another Person or of a business or division of another Person
(each an “Permitted Acquisition”), provided that each of the following
requirements is met:


 


(i)            if the Loan Parties are acquiring
the ownership interests in such Person, such Person shall execute a Guarantor
Joinder and join this Agreement as a Guarantor pursuant to Section 11.18
[Joinder of Guarantors] on or before the date of such Permitted Acquisition;


 


(ii)           to the extent required by Section 8.1.14,
the Loan Parties, such Person and its owners, as applicable, shall grant Liens
in the assets of or acquired from and stock or other ownership interests in
such Person and otherwise comply with Section 11.18 [Joinder of
Guarantors] on or before the date of such Permitted Acquisition;


 


(iii)          the board of directors or other
equivalent governing body of such Person shall have approved such Permitted
Acquisition and, if the Loan Parties shall use any portion of the Loans to fund
such Permitted Acquisition, the Loan Parties also shall have delivered to the
Agent written evidence of the approval of the board of directors (or equivalent
body) of such Person for such Permitted Acquisition;


 


(iv)          if the Loan Parties are acquiring
substantially all of the assets of another Person or of a business or division
of another Person, then the assets of such Person or the assets of such
division shall be substantially the same as, or shall support or be
complementary to, the lines of business conducted by the Loan Parties and shall
comply with Section 8.2.10 [Continuation of or Change in Business];


 


(v)           if the Loan Parties are acquiring all
of the ownership interests of another Person, then the assets of such Person
shall be substantially the same as, or shall support or be complementary to,
the lines of business conducted by the Loan Parties and shall comply with Section 8.2.10
[Continuation of or Change in Business];


 


(vi)          no Potential Default or Event of
Default shall exist immediately prior to and after giving effect to such
Permitted Acquisition;


 


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(vii)         that the Borrower shall have, after
giving effect to such Permitted Acquisition and any Loan associated therewith,
at least $15,000,000 of Availability;


 


(viii)        the Borrower shall demonstrate that it
shall be in compliance with the covenants contained in Sections 8.2.17 and
8.2.18 after giving effect to such Permitted Acquisition (including in such
computation Indebtedness or other liabilities assumed or incurred in connection
with such Permitted Acquisition but excluding income earned or expenses
incurred by the Person, business or assets to be acquired prior to the date of
such Permitted Acquisition) by delivering at least five (5) Business Days
prior to such Permitted Acquisition a certificate in the form of Exhibit 8.2.6
evidencing such compliance; and


 


(ix)           the Loan Parties shall deliver to the
Agent at least five (5) Business Days before such Permitted Acquisition
copies of any agreements entered into or proposed to be entered into by such
Loan Parties in connection with such Permitted Acquisition and shall deliver to
the Agent such other information about such Person or its assets as any Loan
Party may reasonably require.


 


8.2.7        Dispositions
of Assets or Subsidiaries.


 


Each of the Loan Parties
shall not, and shall not permit any of its Subsidiaries to, sell, convey,
assign, lease, abandon or otherwise transfer or dispose of, voluntarily or
involuntarily, any of its properties or assets, tangible or intangible
(including sale, assignment, discount or other disposition of accounts,
contract rights, chattel paper, equipment or general intangibles with or
without recourse or of capital stock, shares of beneficial interest,
partnership interests or limited liability company interests of a Subsidiary of
such Loan Party), except:


 


(i)            transactions
involving the sale of inventory in the ordinary course of business;


 


(ii)           any
sale, conveyance, assignment, lease, abandonment or other transfer or disposal
of assets in the ordinary course of business which are no longer necessary or
required in the conduct of such Loan Party’s or such Subsidiary’s business;


 


(iii)          any
sale, conveyance, assignment, lease, abandonment or other transfer or disposal
of assets by any wholly owned Subsidiary of such Loan Party to another Loan
Party;


 


(iv)          any
sale, conveyance, assignment, lease, abandonment or other transfer or disposal
of assets in the ordinary course of business in an aggregate amount not to
exceed $5,000,000 per fiscal year, which assets are replaced by substitute
assets acquired or leased within the parameters of Section 8.2.15 [Capital
Expenditures and Leases], provided such substitute assets are replaced
by substitute assets of a similar nature and type within one hundred-eighty
(180) days of such sale, transfer, or lease of assets; or


 


70

















 


(v)           any
sale, conveyance, assignment, lease, abandonment or other transfer or disposal
of assets of the Excluded Subsidiaries, provided that each of the
Excluded Subsidiaries own only real property interests and permits in either
Colorado or Illinois.


 


8.2.8        Affiliate
Transactions.


 


Each of the Loan Parties
shall not, and shall not permit any of its Subsidiaries to, enter into or carry
out any transaction with any Affiliate who is not a Loan Party (including
purchasing property or services from or selling property or services to any
Affiliate or other Person), unless such transaction is not otherwise prohibited
by this Agreement, is entered into in the ordinary course of business upon fair
and reasonable arm’s-length terms and conditions which are fully disclosed to
the Agent and is in accordance with all applicable Law.  The Loan Parties and their Subsidiaries shall
be permitted to: (i) reimburse Wexford for legal, management, and other
general and administrative services in the ordinary course of business upon
fair and reasonable arm’s-length terms and conditions and in accordance with
all applicable Law, and (ii) pay Wexford principal of and interest on
Indebtedness owed to Wexford which is subordinated in accordance with the
provisions of Section 8.1.12 and as permitted by the Wexford Subordination
Agreement (provided that in the case of any such payment of principal, the
Borrower shall deliver to the Agent at least five (5) Business Days before
such proposed payment of principal, a certificate of the Borrower in
substantially the form of Exhibit 8.3.4 evidencing the Loan Parties
compliance with the requirements of Section 5(a) of the Wexford
Subordination Agreement); in any case under clause (i) or (ii) of
this Section 8.2.8, so long as no Event of Default or Potential Default
exists and is continuing or would result therefrom.


 


8.2.9        Subsidiaries,
Partnerships and Joint Ventures.


 


Each of the Loan Parties
shall not, and shall not permit any of its Subsidiaries to, own or create
directly or indirectly any Subsidiaries other than:  (i) any Subsidiary which has joined this
Agreement as Guarantor on the Closing Date; and (ii) any Subsidiary formed
after the Closing Date which joins this Agreement as a Guarantor pursuant to Section 11.18
[Joinder of Guarantors], provided that the Required Lenders shall have
consented to such formation and joinder and that such Subsidiary and the Loan
Parties, as applicable, shall grant and cause to be perfected first priority
Liens to the Agent for the benefit of the Lenders in the assets held by, and
stock of or other ownership interests in, such Subsidiary.  Each of the Loan Parties shall not become or
agree to:  (1) become a general or
limited partner in any general or limited partnership, except that the Loan
Parties may be general or limited partners in other Loan Parties, (2) become
a member or manager of, or hold a limited liability company interest in, a
limited liability company, except that the Loan Parties may be members or
managers of, or hold limited liability company interests in, other Loan
Parties, or (3) become a joint venturer or hold a joint venture interest
in any joint venture.


 


8.2.10      Continuation
of or Change in Business.


 


Each of the Loan Parties
shall not, and shall not permit any of its Subsidiaries to, engage in any
business other than the business substantially as conducted and operated or as
proposed to be conducted and operated by such Loan Party or Subsidiary on the


 


71

















 


Closing Date or
any business substantially related thereto, and such Loan Party or Subsidiary
shall not permit any material change in such business; provided, however,
that the Loan Parties and/or any of their Subsidiaries may engage in any
business related to Hydrocarbons or Hydrocarbon Interests that are supplemental
and ancillary to the business substantially as conducted and operated or as
proposed to be conducted and operated by such Loan Party or Subsidiary on the
Closing Date, which such business shall not include entering into any oil and
gas joint venture or entering into a drilling program for oil and gas.


 


8.2.11      Plans
and Benefit Arrangements.


 


Each of the Loan Parties
shall not, and shall not permit any of its Subsidiaries to:


 


(i)            fail
to satisfy the minimum funding requirements of ERISA and the Internal Revenue
Code with respect to any Plan;


 


(ii)           request
a minimum funding waiver from the Internal Revenue Service with respect to any
Plan;


 


(iii)          engage
in a Prohibited Transaction with any Plan, Benefit Arrangement or Multiemployer
Plan which, alone or in conjunction with any other circumstances or set of
circumstances resulting in liability under ERISA, would constitute a Material
Adverse Change;


 


(iv)          permit
the aggregate actuarial present value of all benefit liabilities (whether or
not vested) under each Plan, determined on a plan termination basis, as
disclosed in the most recent actuarial report completed with respect to such
Plan, to exceed, as of any actuarial valuation date, the fair market value of
the assets of such Plan;


 


(v)           fail
to make when due any contribution to any Multiemployer Plan that the Borrower
or any member of the ERISA Group may be required to make under any agreement
relating to such Multiemployer Plan, or any Law pertaining thereto;


 


(vi)          withdraw
(completely or partially) from any Multiemployer Plan or withdraw (or be deemed
under Section 4062(e) of ERISA to withdraw) from any Multiple
Employer Plan, where any such withdrawal is likely to result in a material
liability of the Borrower or any member of the ERISA Group;


 


(vii)         terminate,
or institute proceedings to terminate, any Plan, where such termination is
likely to result in a material liability to the Borrower or any member of the
ERISA Group;


 


(viii)        make
any amendment to any Plan with respect to which security is required under Section 307
of ERISA; or


 


72

















 


(ix)           fail
to give any and all notices and make all disclosures and governmental filings
required under ERISA or the Internal Revenue Code, where such failure is likely
to result in a Material Adverse Change.


 


8.2.12      Fiscal
Year.


 


The 2006 fiscal year for
each Loan Party and each Subsidiary of each Loan Party is the nine-month period
beginning April 1, 2006 and ending December 31, 2006.  Beginning January 1, 2007, the Borrower
shall not, and shall not permit any Subsidiary of the Borrower to, change its
fiscal year from the twelve-month period beginning January 1st and ending December 31st.


 


8.2.13      Issuance
of Stock, Partnership Interests or Member Interests.


 


Each of the Loan Parties
shall not, and shall not permit any of its Subsidiaries to issue any additional
shares of such Loan Party’s capital stock (if it is a corporation), partnership
interests of such Loan Party (if it is a partnership) or limited liability
company interests of such Loan Party (if it is a limited liability company); or
any options, warrants or other rights in respect thereof.


 


8.2.14      Changes
in Organizational Documents.


 


Each of the Loan Parties
shall not, and shall not permit any of its Subsidiaries to, amend in any
respect its certificate of incorporation (including any provisions or
resolutions relating to capital stock), by-laws, certificate of limited
partnership, partnership agreement, certificate of formation, limited liability
company agreement or other organizational documents, provided, however, that
the Loan Parties may enter into amendments to document minor administrative
changes in the governance of any such Loan Party so long as notice of all such
amendments are provided to the Agent at the time of any such amendment.


 


8.2.15      Capital
Expenditures.


 


Each of the Loan Parties
shall not, and shall not permit any of its Subsidiaries to, make any payments
exceeding the amounts set forth below in the aggregate in any period specified
below on account of the purchase or lease of any assets which if purchased
would constitute fixed assets or which if leased would constitute a capitalized
lease.  All such capital expenditures and
capitalized leases shall be made under usual and customary terms and in the
ordinary course of business:


 


	
  Period

  	
   

  	
  Amount

  	
   

  
	
  Closing
  Date through December 31, 2007

  	
   

  	
  $

  	
  65,000,000

  	
   

  
	
  January 1,
  2008 through and December 31, 2008

  	
   

  	
  $

  	
  50,000,000

  	
   

  
	
  Any
  fiscal year thereafter

  	
   

  	
  $

  	
  42,000,000

  	
   

  



 


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8.2.16      Operating
Leases.


 


The Loan Parties shall
not,  and shall not permit any of their
Subsidiaries to, enter into, or be obligated in respect of, any operating lease
other than in the ordinary course of business on terms and conditions typical
for similarly situated businesses.


 


8.2.17      Maximum
Leverage Ratio.


 


The Loan Parties shall
not at any time permit the Leverage Ratio, calculated as of the end of each
fiscal quarter, to exceed a ratio of 3.0 to 1.0.  Notwithstanding the foregoing, for any fiscal
quarter in which a Permitted Acquisition occurs and:  (i) if such Permitted Acquisition occurs
during the first half of a fiscal quarter, the immediately succeeding two (2) fiscal
quarters or (ii) if such Permitted Acquisition occurs during the second
half of such fiscal quarter, the immediately succeeding three (3) fiscal
quarters (such time periods being referenced to herein as the “Increased
Leverage Ratio Period”), the maximum permitted Leverage Ratio for such
Increased Leverage Ratio Period shall be 3.5 to 1.0, provided, however,
that an Increased Leverage Ratio Period shall not occur prior to the lapse of
two full consecutive quarters after the end of the most recent Increased
Leverage Ratio Period, unless the consideration for the subsequent Permitted
Acquisition is greater than $5,000,000.


 


8.2.18      Minimum
Interest Coverage Ratio.


 


The Loan Parties shall
not permit the Interest Coverage Ratio, calculated as of the end of each fiscal
quarter, to be less than 4.0 to 1.0.


 


8.2.19      No
Limitation on Subsidiary Dividends and Distributions.


 


The Borrower shall not
permit its Subsidiaries to enter into or otherwise be bound by any agreement,
or any provision of any certificate of incorporation, by-laws, partnership
agreement, operating agreement or other organizational formation or governing
document, not to pay dividends or make distributions to the Borrower, except as
imposed as a matter of Law by an Official Body.


 


8.2.20      Negative
Pledges.


 


No Loan Party shall
directly or indirectly enter into or assume or become bound by, or permit any
Subsidiary to enter into or assume or become bound by, any agreement (other
than this Agreement and the other Loan Documents), or any provision of any
certificate of incorporation, bylaws, partnership agreement, operating
agreement or other organizational formation or governing document prohibiting
the creation or assumption of any Lien or encumbrance upon any such Loan Party’s
or Subsidiary’s properties, whether now owned or hereafter created or acquired,
or otherwise prohibiting or restricting any transaction contemplated hereby; provided
that the foregoing shall not apply to:  (i) restrictions
and conditions imposed by any Law or by any Loan Document, (ii) restrictions
or conditions imposed by any agreement relating to secured Indebtedness or
other obligations permitted by this Agreement but only to the extent such
restriction or condition is limited to the specific assets subject to a
Permitted Lien, or


 


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(iii) customary
provisions in leases or other agreements restricting assignment thereof or
creation of a lien thereon.


 


8.3                           Reporting
Requirements.


 


The Loan Parties,
jointly and severally, covenant and agree that until payment in full of the
Loans, Reimbursement Obligations and Letter of Credit Borrowings and interest
thereon, expiration or termination of all Letters of Credit, satisfaction of
all of the Loan Parties’ other Obligations hereunder and under the other Loan
Documents and termination of the Commitments, the Loan Parties will furnish or
cause to be furnished to the Agent and each of the Lenders:


 


8.3.1        Intentionally
Omitted.


 


8.3.2        Quarterly
Financial Statements.


 


As soon as available and
in any event within forty-five (45) calendar days after the end of each of the
first three fiscal quarters in each fiscal year, financial statements of the
Borrower and its Subsidiaries, consisting of a consolidated and consolidating
balance sheet as of the end of such fiscal quarter and related consolidated and
consolidating statements of income, retained earnings, and cash flows for the
fiscal quarter then ended and the fiscal year through that date, all in
reasonable detail and certified (subject to normal year-end audit adjustments)
by the Chief Executive Officer, President or Chief Financial Officer of the
Borrower as having been prepared in accordance with GAAP, consistently applied,
and setting forth in comparative form the respective financial statements for
the corresponding date and period in the previous fiscal year.


 


8.3.3        Annual
Financial Statements.


 


As soon as available and
in any event within ninety (90) days after the end of each fiscal year of the
Borrower, financial statements of the Borrower and its Subsidiaries consisting
of a consolidated and consolidating balance sheet as of the end of such fiscal
year, and related consolidated and consolidating statements of income, retained
earnings, and cash flows for the fiscal year then ended, all in reasonable
detail and setting forth in comparative form the financial statements as of the
end of and for the preceding fiscal year, and certified by independent
certified public accountants of nationally recognized standing satisfactory to
the Agent.  The certificate or report of
accountants shall be free of qualifications (other than any consistency
qualification that may result from a change in the method used to prepare the
financial statements as to which such accountants concur) and shall not indicate
the occurrence or existence of any event, condition or contingency which would
materially impair the prospect of payment or performance of any covenant,
agreement or duty of any Loan Party under any of the Loan Documents.


 


8.3.4        Certificate
of the Borrower.


 


Concurrently with the
financial statements of the Borrower furnished to the Agent and to the Lenders
pursuant to Sections 8.3.2 [Quarterly Financial Statements] and


 


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8.3.3 [Annual
Financial Statements], a certificate (each a “Compliance Certificate”) of the
Borrower signed by the Chief Executive Officer, President or Chief Financial
Officer of the Borrower, in the form of Exhibit 8.3.4, to the
effect that, except as described pursuant to Section 8.3.5 [Notice of
Default], (i) the representations and warranties of the Borrower contained
in Section 6 and in the other Loan Documents are true on and as of the
date of such certificate with the same effect as though such representations
and warranties had been made on and as of such date (except representations and
warranties which expressly relate solely to an earlier date or time) and the
Loan Parties have performed and complied with all covenants and conditions
hereof, (ii) no Event of Default or Potential Default exists and is
continuing on the date of such certificate and (iii) containing
calculations in sufficient detail to demonstrate compliance as of the date of
such financial statements with all financial covenants contained in Section 8.2
[Negative Covenants].


 


8.3.5        Notice
of Default.


 


Promptly after any
officer of any Loan Party has learned of the occurrence of an Event of Default
or Potential Default, a certificate signed by the Chief Executive Officer,
President or Chief Financial Officer of such Loan Party setting forth the
details of such Event of Default or Potential Default and the action which such
Loan Party proposes to take with respect thereto.


 


8.3.6        Notice
of Litigation.


 


Promptly after the
commencement thereof, notice of all actions, suits, proceedings or
investigations before or by any Official Body or any other Person against any
Loan Party or Subsidiary of any Loan Party which relate to the Collateral,
involve a claim or series of claims in excess of $10,000,000 or which if adversely
determined would constitute a Material Adverse Change.


 


8.3.7        Certain
Events.


 


Written notice to the
Agent at least five (5) calendar days prior thereto, with respect to any
proposed sale or transfer of assets pursuant to Section 8.2.7(iv).


 


8.3.8        Budgets,
Forecasts, Other Reports and Information.


 


Promptly upon their
becoming available to the Borrower:


 


(i)            deliver the annual
budget and any forecasts or projections of the Borrower, to be supplied not
later than fifteen (15) days prior to commencement of the fiscal year to which
any of the foregoing may be applicable,


 


(ii)           any
reports, notices or proxy statements generally distributed by the Borrower to
its members on a date no later than the date supplied to such members,


 


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(iii)          any regular or periodic reports, including
Forms 10-K, 10-Q and 8-K, registration statements and prospectuses, filed by
the Borrower with the Securities and Exchange Commission,


 


(iv)          a
copy of any order in any proceeding to which the Borrower or any of its
Subsidiaries is a party issued by any Official Body, and


 


(v)           such
other reports and information as any of the Lenders may from time to time
reasonably request.  The Borrower shall
also notify the Lenders promptly of:  (i) the
enactment or adoption of any Law which may result in a Material Adverse Change
and (ii) any Material Adverse Change.


 


8.3.9        Notices Regarding Plans and Benefit
Arrangements.


 


8.3.9.1     Certain Events.


 


Promptly upon
becoming aware of the occurrence thereof, notice (including the nature of the
event and, when known, any action taken or threatened by the Internal Revenue
Service or the PBGC with respect thereto) of:


 


(i)            any
Reportable Event with respect to the Borrower or any other member of the ERISA
Group (regardless of whether the obligation to report said Reportable Event to
the PBGC has been waived),


 


(ii)           any
Prohibited Transaction which could subject the Borrower or any other member of
the ERISA Group to a civil penalty assessed pursuant to Section 502(i) of
ERISA or a tax imposed by Section 4975 of the Internal Revenue Code in
connection with any Plan, any Benefit Arrangement or any trust created
thereunder,


 


(iii)          any assertion of material withdrawal
liability with respect to any Multiemployer Plan,


 


(iv)          any
partial or complete withdrawal from a Multiemployer Plan by the Borrower or any
other member of the ERISA Group under Title IV of ERISA (or assertion thereof),
where such withdrawal is likely to result in material withdrawal liability,


 


(v)           any
cessation of operations (by the Borrower or any other member of the ERISA
Group) at a facility in the circumstances described in Section 4062(e) of
ERISA,


 


(vi)          withdrawal
by the Borrower or any other member of the ERISA Group from a Multiple Employer
Plan,


 


(vii)         a failure by the Borrower or any other member
of the ERISA Group to make a payment to a Plan required to avoid imposition of
a Lien under Section 302(f) of ERISA,


 


77

















 


(viii)        the adoption of an amendment to a Plan requiring
the provision of security to such Plan pursuant to Section 307 of ERISA,
or


 


(ix)           any
change in the actuarial assumptions or funding methods used for any Plan, where
the effect of such change is to materially increase or materially reduce the
unfunded benefit liability or obligation to make periodic contributions.


 


8.3.9.2               Notices of Involuntary Termination
and Annual Reports.


 


Promptly after
receipt thereof, copies of:  (a) all
notices received by the Borrower or any other member of the ERISA Group of the
PBGC’s intent to terminate any Plan administered or maintained by the Borrower
or any member of the ERISA Group, or to have a trustee appointed to administer
any such Plan; and (b) at the request of the Agent or any Lender, each
annual report (IRS Form 5500 series) and all accompanying schedules, the
most recent actuarial reports, the most recent financial information concerning
the financial status of each Plan administered or maintained by the Borrower or
any other member of the ERISA Group, and schedules showing the amounts
contributed to each such Plan by or on behalf of the Borrower or any other
member of the ERISA Group in which any of their personnel participate or from
which such personnel may derive a benefit, and each Schedule B (Actuarial Information)
to the annual report filed by the Borrower or any other member of the ERISA
Group with the Internal Revenue Service with respect to each such Plan.


 


8.3.9.3               Notice of Voluntary Termination.


 


Promptly upon the
filing thereof, copies of any Form 5310, or any successor or equivalent
form to Form 5310, filed with the PBGC in connection with the termination
of any Plan.


 


9.     DEFAULT


 


9.1           Events
of Default.


 


An Event of
Default shall mean the occurrence or existence of any one or more of the
following events or conditions (whatever the reason therefor and whether
voluntary, involuntary or effected by operation of Law):


 


9.1.1        Payments
Under Loan Documents.


 


The Borrower shall fail
to pay any principal of any Loan (including scheduled installments or the payment
due at maturity), Reimbursement Obligation or Letter of Credit Borrowing or
shall fail to pay any interest on any Loan, Reimbursement Obligation or Letter
of Credit Borrowing or any other amount owing hereunder or under the other Loan
Documents after such principal, interest or other amount becomes due in
accordance with the terms hereof or thereof;


 


78

















 


9.1.2        Breach
of Warranty.


 


Any representation or
warranty made at any time by any of the Loan Parties herein or by any of the
Loan Parties in any other Loan Document, or in any certificate, other
instrument or statement furnished pursuant to the provisions hereof or thereof,
shall prove to have been false or misleading in any material respect as of the
time it was made or furnished;


 


9.1.3        Breach
of Negative Covenants and Certain Affirmative Covenants.


 


Any of the Loan Parties
shall default in the observance or performance of any covenant contained in Section 8.1.6
[Visitation Rights], Section 8.1.12 [Subordination of Intercompany Loans]
or Section 8.2 [Negative Covenants];


 


9.1.4        Breach
of Other Covenants.


 


Any of the Loan Parties
shall default in the observance or performance of any other covenant, condition
or provision hereof or of any other Loan Document and such default shall
continue unremedied for a period of ten (10) Business Days after any
executive officer of any Loan Party becomes aware of the occurrence thereof
(such grace period to be applicable only in the event such default can be
remedied by corrective action of the Loan Parties as determined by the Agent in
its sole discretion);


 


9.1.5        Defaults
in Other Agreements or Indebtedness.


 


A default or event of
default shall occur at any time under the terms of:  (i) any Material Contracts or (ii) any
other agreement involving borrowed money 
or the extension of credit or any other Indebtedness under which any
Loan Party or Subsidiary of any Loan Party may be obligated as a borrower or
guarantor in excess of $5,000,000 in the aggregate, and such breach, default or
event of default consists of the failure to pay (beyond any period of grace
permitted with respect thereto, whether waived or not) any indebtedness when
due (whether at stated maturity, by acceleration or otherwise) or if such
breach or default permits or causes the acceleration of any indebtedness
(whether or not such right shall have been waived) or the termination of any
commitment to lend;


 


9.1.6        Final
Judgments or Orders.


 


Any final judgments or
orders for the payment of money in excess of $7,500,000 in the aggregate shall
be entered against any one Loan Party or any combination of Loan Parties by a
court having jurisdiction in the premises, which judgment is not discharged,
vacated, bonded or stayed pending appeal within a period of thirty (30) days
from the date of entry;


 


9.1.7        Loan
Document Unenforceable.


 


Any of the Loan Documents
shall cease to be legal, valid and binding agreements enforceable against the
party executing the same or such party’s successors and assigns (as permitted
under the Loan Documents) in accordance with the respective terms thereof


 


79

















 


or shall in any
way be terminated (except in accordance with its terms) or become or be
declared ineffective or inoperative or shall in any way be challenged or
contested or cease to give or provide the respective Liens, rights, titles,
interests, remedies, powers or privileges intended to be created thereby;


 


9.1.8        Uninsured
Losses; Proceedings Against Assets.


 


There shall occur any
material uninsured damage to or loss, theft or destruction of any property of
the Loan Parties in excess of $7,500,000 or any of the Loan Parties’ or any of
their 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;


 


9.1.9        Notice
of Lien or Assessment.


 


A notice of Lien or
assessment in excess of $7,500,000 which is not a Permitted Lien is filed of
record with respect to all or any part of any of the Loan Parties’ or any of
their Subsidiaries’ assets by the United States, or any department, agency or
instrumentality thereof, or by any state, county, municipal or other
governmental agency, including the PBGC, or any taxes or debts owing at any
time or times hereafter to any one of these becomes payable and the same is not
paid within thirty (30) days after the same becomes payable;


 


9.1.10      Insolvency.


 


Any Loan Party or any
Subsidiary of a Loan Party ceases to be solvent or admits in writing its
inability to pay its debts as they mature;


 


9.1.11      Events Relating to Plans and Benefit
Arrangements.


 


Any of the following
occurs:  (i) any Reportable Event,
which the Agent determines in good faith constitutes grounds for the
termination of any Plan by the PBGC or the appointment of a trustee to
administer or liquidate any Plan, shall have occurred and be continuing; (ii) proceedings
shall have been instituted or other action taken to terminate any Plan, or a
termination notice shall have been filed with respect to any Plan; (iii) a
trustee shall be appointed to administer or liquidate any Plan; (iv) the
PBGC shall give notice of its intent to institute proceedings to terminate any
Plan or Plans or to appoint a trustee to administer or liquidate any Plan; and,
in the case of the occurrence of (i), (ii), (iii) or (iv) above, the
Agent determines in good faith that the amount of the Borrower’s liability is
likely to exceed 10% of its Consolidated Tangible Net Worth; (v) the
Borrower or any member of the ERISA Group shall fail to make any contributions
when due to a Plan or a Multiemployer Plan; (vi) the Borrower or any other
member of the ERISA Group shall make any amendment to a Plan with respect to
which security is required under Section 307 of ERISA; (vii) the
Borrower or any other member of the ERISA Group shall withdraw completely or
partially from a Multiemployer Plan; (viii) the Borrower or any other
member of the ERISA Group shall withdraw (or shall be deemed under Section 4062(e) of
ERISA to withdraw) from a Multiple Employer Plan; or (ix) any applicable
Law is adopted, changed or interpreted by any Official Body with respect to or
otherwise


 


80

















 


affecting one or
more Plans, Multiemployer Plans or Benefit Arrangements and, with respect to
any of the events specified in (v), (vi), (vii), (viii) or (ix), the Agent
determines in good faith that any such occurrence would be reasonably likely to
materially and adversely affect the total enterprise represented by the
Borrower and the other members of the ERISA Group;


 


9.1.12      Cessation
of Business.


 


Any Loan Party or
Subsidiary of a Loan Party ceases to conduct its business as contemplated,
except as expressly permitted under Section 8.2.6 [Liquidations, Mergers,
Etc.] or 8.2.7 [Dispositions of Assets or Subsidiaries], or any Loan Party or
Subsidiary of a Loan Party is enjoined, restrained or in any way prevented by
court order from conducting all or any material part of its business and such
injunction, restraint or other preventive order is not dismissed within thirty
(30) days after the entry thereof;


 


9.1.13      Change of Control.


 


A Change of Control shall
occur;


 


9.1.14      Involuntary Proceedings.


 


A proceeding shall have
been instituted in a court having jurisdiction in the premises seeking a decree
or order for relief in respect of any Loan Party or Subsidiary of a Loan Party
in an involuntary case under any applicable bankruptcy, insolvency,
reorganization or other similar Law now or hereafter in effect, or for the
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator, conservator (or similar official) of any Loan Party or Subsidiary
of a Loan Party for any substantial part of its property, or for the winding-up
or liquidation of its affairs, and such proceeding shall remain undismissed or
unstayed and in effect for a period of thirty (30) consecutive days or such
court shall enter a decree or order granting any of the relief sought in such
proceeding; or


 


9.1.15      Voluntary Proceedings.


 


Any Loan Party or
Subsidiary of a Loan Party shall commence a voluntary case under any applicable
bankruptcy, insolvency, reorganization or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary
case under any such law, or shall consent to the appointment or taking
possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator, conservator (or other similar official) of itself or for any
substantial part of its property or shall make a general assignment for the
benefit of creditors, or shall fail generally to pay its debts as they become
due, or shall take any action in furtherance of any of the foregoing.


 


9.1.16      Loss of Bonding Capability.


 


(i) The Loan
Parties, taken as a whole, shall fail to maintain sufficient mine bonding
capacity to be able to conduct their operations substantially as contemplated
by the mining plans used in preparing the Financial Projections, or (ii) the
Loan Parties shall default, in any material manner, in the compliance with or
the performance of its surety bonding agreements


 


81

















 


and obligations
(including any default in the payment of outstanding reimbursement claims owing
in connection with any of the bonds outstanding) and such default would
materially adversely affect the Loan Parties’, taken as a whole, ability to
conduct their operations substantially as contemplated by the mining plans used
in preparing the Financial Projections.


 


9.2                   Consequences of Event of
Default.


 


9.2.1        Events
of Default Other Than Bankruptcy, Insolvency or Reorganization Proceedings.


 


If an Event of Default
specified under Sections 9.1.1 through 9.1.13 or 9.1.16 shall occur and be
continuing, the Lenders and the Agent shall be under no further obligation to
make Loans and the Issuing Lender shall be under no obligation to issue Letters
of Credit, and the Agent may, and upon the request of the Required Lenders,
shall:  (i) by written notice to the
Borrower, declare the unpaid principal amount of the Notes then outstanding and
all interest accrued thereon, any unpaid fees and all other Indebtedness of the
Borrower to the Lenders hereunder and thereunder to be forthwith due and
payable, and the same shall thereupon become and be immediately due and payable
to the Agent for the benefit of each Lender without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived, and (ii) require the Borrower to, and the Borrower shall
thereupon, deposit in a non-interest-bearing account with the Agent, as cash
collateral for its Obligations under the Loan Documents, an amount equal to the
maximum amount currently or at any time thereafter available to be drawn on all
outstanding Letters of Credit, and the Borrower hereby pledges to the Agent and
the Lenders, and grants to the Agent and the Lenders a security interest in,
all such cash as security for such Obligations. 
Upon the curing of all existing Events of Default to the satisfaction of
the Required Lenders, the Agent shall return such cash collateral to the
Borrower; and


 


9.2.2        Bankruptcy,
Insolvency or Reorganization Proceedings.


 


If an Event of Default
specified under Section 9.1.14 [Involuntary Proceedings] or 9.1.15
[Voluntary Proceedings] shall occur, the Lenders and the Agent shall be under
no further obligation to make Loans hereunder, the Issuing Lender shall be
under no obligation to issue Letters of Credit, and the unpaid principal amount
of the Loans then outstanding and all interest accrued thereon, any unpaid fees
and all other Indebtedness of the Borrower to the Lenders hereunder and
thereunder shall be immediately due and payable, without presentment, demand,
protest or notice of any kind, all of which are hereby expressly waived; and


 


9.2.3        Set-off.


 


If an Event of Default
shall occur and be continuing, any Lender to whom any Obligation is owed by any
Loan Party hereunder or under any other Loan Document or any participant of
such Lender which has agreed in writing to be bound by the provisions of Section 10.13
[Equalization of Lenders] and any branch, Subsidiary or Affiliate of such
Lender or participant anywhere in the world shall have the right, in addition
to all other rights and


 


82

















 


remedies available
to it, without notice to such Loan Party, to set-off against and apply to the
then unpaid balance of all the Loans and all other Obligations of the Borrower
and the other Loan Parties hereunder or under any other Loan Document any debt
owing to, and any other funds held in any manner for the account of, the
Borrower or such other Loan Party by such Lender or participant or by such
branch, Subsidiary or Affiliate, including all funds in all deposit accounts
(whether time or demand, general or special, provisionally credited or finally
credited, or otherwise) now or hereafter maintained by the Borrower or such
other Loan Party for its own account (but not including funds held in custodian
or trust accounts) with such Lender or participant or such branch, Subsidiary
or Affiliate.  Such right shall exist
whether or not any Lender or the Agent shall have made any demand under this
Agreement or any other Loan Document, whether or not such debt owing to or
funds held for the account of the Borrower or such other Loan Party is or are
matured or unmatured and regardless of the existence or adequacy of any
collateral, Guaranty or any other security, right or remedy available to any
Lender or the Agent; and


 


9.2.4        Suits,
Actions, Proceedings.


 


If an Event of Default
shall occur and be continuing, and whether or not the Agent shall have
accelerated the maturity of Loans pursuant to any of the foregoing provisions
of this Section 9.2, the Agent or any Lender, if owed any amount with
respect to the Loans, may proceed to protect and enforce its rights by suit in
equity, action at law and/or other appropriate proceeding, whether for the
specific performance of any covenant or agreement contained in this Agreement
or the other Loan Documents, including as permitted by applicable Law the
obtaining of the ex  parte appointment of a receiver, and, if such
amount shall have become due, by declaration or otherwise, proceed to enforce
the payment thereof or any other legal or equitable right of the Agent or such
Lender; and


 


9.2.5        Application of Proceeds; Collateral Sharing.


 


9.2.5.1     Application of Proceeds.


 


From and after the date
on which the Agent has taken any action pursuant to this Section 9.2 and
until all Obligations of the Loan Parties have been paid in full, any and all
proceeds received by the Agent from any sale or other disposition of the
Collateral, or any part thereof, or the exercise of any other remedy by the
Agent, shall be applied as follows:


 


(i)            first,
to reimburse the Agent and the Lenders for out-of-pocket costs, expenses and
disbursements, including reasonable attorneys’ and paralegals’ fees and legal
expenses, incurred by the Agent or the Lenders in connection with realizing on
the Collateral or collection of any Obligations of any of the Loan Parties
under any of the Loan Documents, including advances made by the Lenders or any
one of them or the Agent for the reasonable maintenance, preservation,
protection or enforcement of, or realization upon, the Collateral, including
advances for taxes, insurance, repairs and the like and reasonable expenses
incurred to sell or otherwise realize on, or prepare for sale or other
realization on, any of the Collateral;


 


83

















 


(ii)           second,
to the repayment of all Obligations then due and unpaid of the Loan Parties to
the Lenders incurred under this Agreement or any of the other Loan Documents or
a Lender-Provided Interest Rate Hedge or a Lender-Provided Commodity Hedge,
whether of principal, interest, fees, expenses or otherwise, on a pro rata
basis; and


 


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


 


9.2.5.2               Collateral Sharing.


 


All Liens granted under a
Loan Document (the “Collateral Documents”) shall secure ratably and on a pari
passu basis:  (i) the Obligations in
favor of the Agent and the Lenders hereunder and (ii) the Obligations
incurred by any of the Loan Parties in favor of any Lender or any affiliate
thereof which provides a Lender-Provided Interest Rate Hedge (the “IRH Provider”)
or a Lender-Provided Commodity Hedge (the “CH Provider”).  The Agent under the Collateral Documents
shall be deemed to serve as the collateral agent (the “Collateral Agent”) for
the IRH Provider, the CH Provider, and the Lenders hereunder, provided that the
Collateral Agent shall comply with the instructions and directions of the Agent
(or the Lenders under this Agreement to the extent that this Agreement or any
other Loan Documents empowers the Lenders to direct the Agent), as to all
matters relating to the Collateral, including the maintenance and disposition
thereof.  No IRH Provider or CH Provider
(except in its capacity as a Lender hereunder) shall be entitled or have the
power to direct or instruct the Collateral Agent on any such matters or to
control or direct in any manner the maintenance or disposition of the
Collateral.


 


9.2.6        Other
Rights and Remedies.


 


In addition to all of the
rights and remedies contained in this Agreement or in any of the other Loan
Documents, the Agent shall have all of the rights and remedies of a secured
party under the Uniform Commercial Code or other applicable Law, all of which
rights and remedies shall be cumulative and non-exclusive, to the extent
permitted by Law.  The Agent may, and
upon the request of the Required Lenders shall, exercise all post-default
rights granted to the Agent and the Lenders under the Loan Documents or
applicable Law, provided, however, the Agent and the Lenders may
not exercise any post-default rights granted to the Agent and the Lenders under
the Pledge Agreement (Borrower) with respect to: (a) transfer into its own
name, or into the name of its nominee, all or any part of the Pledged
Collateral (as defined in the Pledge Agreement (Borrower) of Wexford and Terry
N. Coleman , thereafter receiving all dividends, income or other distributions
upon such Pledged Collateral, or (b) take control of and manage all or any
of such Pledged Collateral of Wexford and Terry N. Coleman, unless any such
default leading to such post-default rights granted pursuant to the Pledge
Agreement (Borrower) shall continue unremedied for a period of thirty (30) days
after the Agent gives written notice of such default to Wexford, so that
Wexford has an opportunity to cure such default.


 


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9.3                   Notice of Sale.


 


Any notice
required to be given by the Agent of a sale, lease, or other disposition of the
Collateral or any other intended action by the Agent, if given ten (10) days
prior to such proposed action, shall constitute commercially reasonable and
fair notice thereof to the Borrower.


 


10.   THE AGENT


 


10.1                 Appointment.


 


Each Lender hereby
irrevocably designates, appoints and authorizes PNC Bank to act as Agent for
such Lender under this Agreement and to execute and deliver or accept on behalf
of each of the Lenders the other Loan Documents.  Each Lender hereby irrevocably authorizes,
and each holder of any Note by the acceptance of a Note shall be deemed irrevocably
to authorize, the Agent to take such action on its behalf under the provisions
of this Agreement and the other Loan Documents and any other instruments and
agreements referred to herein, and to exercise such powers and to perform such
duties hereunder as are specifically delegated to or required of the Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto.  PNC Bank agrees to act as the
Agent on behalf of the Lenders to the extent provided in this Agreement.


 


10.2                 Delegation of
Duties.


 


The Agent may
perform any of its duties hereunder by or through agents or employees (provided
such delegation does not constitute a relinquishment of its duties as Agent)
and, subject to Sections 10.5 [Reimbursement of Agent by Borrower, Etc.]
and 10.6, shall be entitled to engage and pay for the advice or services of any
attorneys, accountants or other experts concerning all matters pertaining to
its duties hereunder and to rely upon any advice so obtained.  It is acknowledged and agreed that:  (i) National City Bank has received the
title of joint lead arranger and (ii) each of Wachovia Bank, National
Association, Royal Bank of Canada, and Raymond James Bank, FSB have received
the title of co-documentation agents under this Agreement; however, such
designations are solely to give each of National City Bank, Wachovia Bank,
National Association, Royal Bank of Canada, and Raymond James Bank, FSB its
respective title and each of National City Bank, Wachovia Bank, National
Association, Royal Bank of Canada, and Raymond James Bank, FSB has no duties,
responsibilities, functions, obligations or liabilities, implied or otherwise,
under the Loan Documents solely as a result of being so designated as a joint
lead arranger or co-documentation agent.


 


10.3                 Nature of
Duties; Independent Credit Investigation.


 


The Agent shall
have no duties or responsibilities except those expressly set forth in this
Agreement and no implied covenants, functions, responsibilities, duties,
obligations, or liabilities shall be read into this Agreement or otherwise
exist.  The duties of the Agent shall be
mechanical and administrative in nature; the Agent shall not have by reason of
this Agreement a fiduciary or trust relationship in respect of any Lender; and
nothing in this Agreement, expressed or implied, is intended to or shall be so
construed as to impose upon the Agent any obligations in


 


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respect of this Agreement except as expressly set forth herein.  Without limiting the generality of the
foregoing, the use of the term “agent” in this Agreement with reference to the
Agent is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable Law.  Instead, such term is used merely as a matter
of market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.  Each Lender expressly acknowledges:  (i) that the Agent has not made any
representations or warranties to it and that no act by the Agent hereafter
taken, including any review of the affairs of any of the Loan Parties, shall be
deemed to constitute any representation or warranty by the Agent to any Lender;
(ii) that it has made and will continue to make, without reliance upon the
Agent, its own independent investigation of the financial condition and affairs
and its own appraisal of the creditworthiness of each of the Loan Parties in
connection with this Agreement and the making and continuance of the Loans
hereunder; and (iii) except as expressly provided herein, that the Agent
shall have no duty or responsibility, either initially or on a continuing
basis, to provide any Lender with any credit or other information with respect
thereto, whether coming into its possession before the making of any Loan or at
any time or times thereafter.


 


10.4         Actions
in Discretion of Agent; Instructions From the Lenders.


 


The Agent agrees,
upon the written request of the Required Lenders, to take or refrain from
taking any action of the type specified as being within the Agent’s rights,
powers or discretion herein, provided that the Agent shall not be
required to take any action which exposes the Agent to personal liability or
which is contrary to this Agreement or any other Loan Document or applicable
Law.  In the absence of a request by the
Required Lenders, the Agent shall have authority, in its sole discretion, to
take or not to take any such action, unless this Agreement specifically
requires the consent of the Required Lenders or all of the Lenders.  Any action taken or failure to act pursuant
to such instructions or discretion shall be binding on the Lenders, subject to Section 10.6
[Exculpatory Provisions, Etc.].  Subject
to the provisions of Section 10.6, no Lender shall have any right of
action whatsoever against the Agent as a result of the Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Lenders, or in the absence of such instructions, in the absolute
discretion of the Agent.


 


10.5         Reimbursement
and Indemnification of Agent by the Borrower.


 


The Borrower
unconditionally agrees to pay or reimburse the Agent and hold the Agent
harmless against:  (a) liability for
the payment of all reasonable out-of-pocket costs, expenses and disbursements,
including fees and expenses of counsel (including the allocated costs of staff
counsel), appraisers, mining engineers, and environmental consultants, incurred
by the Agent:  (i) in connection
with the development, negotiation, preparation, printing, execution,
administration, syndication, interpretation and performance of this Agreement
and the other Loan Documents, (ii) relating to any requested amendments,
waivers or consents pursuant to the provisions hereof, (iii) in connection
with the enforcement of this Agreement or any other Loan Document or collection
of amounts due hereunder or thereunder or the proof and allowability of any
claim arising under this Agreement or any other Loan Document, whether in
bankruptcy or receivership proceedings or otherwise, and (iv) in any
workout or restructuring or in connection with the protection, preservation,
exercise or enforcement of any of the terms hereof or of any


 


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rights hereunder or under any other Loan Document or in connection with
any foreclosure, collection or bankruptcy proceedings, and (b) all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may be imposed on, incurred by or asserted against the Agent, in its capacity
as such, in any way relating to or arising out of this Agreement or any other
Loan Documents or any action taken or omitted by the Agent hereunder or
thereunder, provided that the Borrower shall not be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements if the same results from the
Agent’s gross negligence or willful misconduct, or if the Borrower was not
given notice of the subject claim and the opportunity to participate in the
defense thereof, at its expense (except that the Borrower shall remain liable
to the extent such failure to give notice does not result in a loss to the
Borrower), or if the same results from a compromise or settlement agreement
entered into without the consent of the Borrower, which shall not be
unreasonably withheld.  In addition, the
Borrower agrees to reimburse and pay all reasonable out-of-pocket expenses of
the Agent’s regular employees and agents engaged periodically to perform audits
of the Loan Parties’ books, records and business properties.


 


10.6         Exculpatory
Provisions; Limitation of Liability.


 


Neither the Agent
nor any of its directors, officers, employees, agents, attorneys or Affiliates
shall:  (a) be liable to any Lender
for any action taken or omitted to be taken by it or them hereunder, or in
connection herewith including pursuant to any Loan Document, unless caused by
its or their own gross negligence or willful misconduct, (b) be
responsible in any manner to any of the Lenders for the effectiveness,
enforceability, genuineness, validity or the due execution of this Agreement or
any other Loan Documents or for any recital, representation, warranty,
document, certificate, report or statement herein or made or furnished under or
in connection with this Agreement or any other Loan Documents, or (c) be
under any obligation to any of the Lenders to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions hereof
or thereof on the part of the Loan Parties, or the financial condition of the
Loan Parties, or the existence or possible existence of any Event of Default or
Potential Default. No claim may be made by any of the Loan Parties, any Lender,
the Agent or any of their respective Subsidiaries against the Agent, any Lender
or any of their respective directors, officers, employees, agents, attorneys or
Affiliates, or any of them, for any special, indirect or consequential damages
or, to the fullest extent permitted by Law, for any punitive damages in respect
of any claim or cause of action (whether based on contract, tort, statutory
liability, or any other ground) based on, arising out of or related to any Loan
Document or the transactions contemplated hereby or any act, omission or event
occurring in connection therewith, including the negotiation, documentation,
administration or collection of the Loans, and each of the Loan Parties (for
itself and on behalf of each of its Subsidiaries), the Agent and each Lender
hereby waive, releases and agree never to sue upon any claim for any such
damages, whether such claim now exists or hereafter arises and whether or not
it is now known or suspected to exist in its favor.  Each Lender agrees that, except for notices,
reports and other documents expressly required to be furnished to the Lenders
by the Agent hereunder or given to the Agent for the account of or with copies
for the Lenders, the Agent and each of its directors, officers, employees,
agents, attorneys or Affiliates shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the
business, operations,


 


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property, condition (financial or otherwise), prospects or
creditworthiness of the Loan Parties which may come into the possession of the
Agent or any of its directors, officers, employees, agents, attorneys or
Affiliates.


 


10.7         Reimbursement
and Indemnification of Agent by Lenders.


 


Each Lender agrees
to reimburse and indemnify the Agent (to the extent not reimbursed by the
Borrower and without limiting the Obligation of the Borrower to do so) in
proportion to its Ratable Share from and against all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements, including attorneys’ fees and disbursements (including the
allocated costs of staff counsel), and costs of appraisers and environmental
consultants, of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against the Agent, in its capacity as such, in any way relating
to or arising out of this Agreement or any other Loan Documents or any action taken
or omitted by the Agent hereunder or thereunder, provided that no Lender
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements:  (a) if the same
results from the Agent’s gross negligence or willful misconduct, or (b) if
such Lender was not given notice of the subject claim and the opportunity to
participate in the defense thereof, at its expense (except that such Lender
shall remain liable to the extent such failure to give notice does not result
in a loss to the Lender), or (c) if the same results from a compromise and
settlement agreement entered into without the consent of such Lender, which
shall not be unreasonably withheld.  In
addition, each Lender agrees promptly upon demand to reimburse the Agent (to
the extent not reimbursed by the Borrower and without limiting the Obligation
of the Borrower to do so) in proportion to its Ratable Share for all amounts
due and payable by the Borrower to the Agent in connection with the Agent’s
periodic audit of the Loan Parties’ books, records and business properties.


 


10.8         Reliance
by Agent.


 


The Agent shall be
entitled to rely upon any writing, telegram, telex or teletype message,
resolution, notice, consent, certificate, letter, cablegram, statement, order
or other document or conversation by telephone or otherwise believed by it to
be genuine and correct and to have been signed, sent or made by the proper
Person or Persons, and upon the advice and opinions of counsel and other
professional advisers selected by the Agent. 
The Agent shall be fully justified in failing or refusing to take any
action hereunder unless it shall first be indemnified to its satisfaction by
the Lenders against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action.


 


10.9         Notice
of Default.


 


The Agent shall
not be deemed to have knowledge or notice of the occurrence of any Potential
Default or Event of Default unless the Agent has received written notice from a
Lender or the Borrower referring to this Agreement, describing such Potential
Default or Event of Default and stating that such notice is a “notice of
default.”


 


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10.10       Notices.


 


The Agent shall
promptly send to each Lender a copy of all notices received from the Borrower
pursuant to the provisions of this Agreement or the other Loan Documents
promptly upon receipt thereof.  The Agent
shall promptly notify the Borrower and the other Lenders of each change in the
Base Rate and the effective date thereof.


 


10.11       Lenders in Their Individual Capacities; Agent
in its Individual Capacity.


 


With respect to
its Revolving Credit Commitment and the Revolving Credit Loans made by it and
any other rights and powers given to it as a Lender hereunder or under any of
the other Loan Documents, the Agent shall have the same rights and powers
hereunder as any other Lender and may exercise the same as though it were not
the Agent, and the term “Lender” and “Lenders” shall, unless the context
otherwise indicates, include the Agent in its individual capacity.  PNC Bank and its Affiliates and each of the
Lenders and their respective Affiliates may, without liability to account, except
as prohibited herein, make loans to, issue letters of credit for the account
of, acquire equity interests in, accept deposits from, discount drafts for, act
as trustee under indentures of, and generally engage in any kind of banking,
trust, financial advisory, underwriting or other business with, the Loan
Parties and their Affiliates, in the case of the Agent, as though it were not
acting as Agent hereunder and in the case of each Lender, as though such Lender
were not a Lender hereunder, in each case without notice to or consent of the
other Lenders.  The Lenders acknowledge
that, pursuant to such activities, the Agent or its Affiliates may:  (i) receive information regarding the
Loan Parties or any of their Subsidiaries or Affiliates (including information
that may be subject to confidentiality obligations in favor of the Loan Parties
or such Subsidiary or Affiliate) and acknowledge that the Agent shall be under
no obligation to provide such information to them, and (ii) accept fees
and other consideration from the Loan Parties for services in connection with
this Agreement and otherwise without having to account for the same to the
Lenders.


 


10.12       Holders of Notes.


 


The Agent may deem
and treat any payee of any Note as the owner thereof for all purposes hereof
unless and until written notice of the assignment or transfer thereof shall
have been filed with the Agent.  Any
request, authority or consent of any Person who at the time of making such
request or giving such authority or consent is the holder of any Note shall be
conclusive and binding on any subsequent holder, transferee or assignee of such
Note or of any Note or Notes issued in exchange therefor.


 


10.13       Equalization of Lenders.


 


The Lenders and
the holders of any participations in any Notes agree among themselves that,  with respect to all amounts received by any Lender or any
such holder for application on any Obligation hereunder or under any Note or
under any such participation, whether received by voluntary payment, by
realization upon security, by the exercise of the right of set-off or banker’s
lien, by counterclaim or by any other non-pro rata source, equitable adjustment
will be made in the manner stated in the following sentence so that, in effect,
all such


 


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excess amounts will be shared ratably among the Lenders and such
holders in proportion to their interests in payments under the Notes, except as
otherwise provided in Section 4.4.3 [Agent’s and Lender’s Rights], 5.4.2
[Replacement of a Lender] or 5.5 [Additional Compensation in Certain
Circumstances].  The Lenders or any such
holder receiving any such amount shall purchase for cash from each of the other
Lenders an interest in such Lender’s Loans in such amount as shall result in a
ratable participation by the Lenders and each such holder in the aggregate
unpaid amount under the Notes, provided that if all or any portion of
such excess amount is thereafter recovered from the Lender or the holder making
such purchase, such purchase shall be rescinded and the purchase price restored
to the extent of such recovery, together with interest or other amounts, if
any, required by law (including court order) to be paid by the Lender or the
holder making such purchase.


 


10.14       Successor Agent.


 


The Agent:  (i) may resign as Agent or (ii) shall
resign if such resignation is requested by the Required Lenders (if the Agent
is a Lender, the Agent’s Loans, Reimbursement Obligations, Letter of Credit
Borrowings, and its Commitment shall be considered in determining whether the
Required Lenders have requested such resignation) or required by Section 5.4.2
[Replacement of a Lender], in either case of (i) or (ii) by giving
not less than thirty (30) days’ prior written notice to the Borrower.  If the Agent shall resign under this
Agreement, then either:  (a) the
Required Lenders shall appoint from among the Lenders a successor agent for the
Lenders, subject to the consent of the Borrower, such consent not to be
unreasonably withheld, provided that no consent of the Borrower shall be
required if an Event of Default exists and is continuing or (b) if a
successor agent shall not be so appointed and approved within the thirty (30)
day period following the Agent’s notice to the Lenders of its resignation, then
the Agent shall appoint, with the consent of the Borrower, such consent not to
be unreasonably withheld, a successor agent who shall serve as Agent until such
time as the Required Lenders appoint and the Borrower consents to the
appointment of a successor agent.  Upon
its appointment pursuant to either clause (a) or (b) above, such
successor agent shall succeed to the rights, powers and duties of the Agent,
and the term “Agent” shall mean such successor agent,  effective
upon its appointment, and the former Agent’s rights, powers and duties as Agent
shall be terminated without any other or further act or deed on the part of
such former Agent or any of the parties to this Agreement.  After the resignation of any Agent hereunder,
the provisions of this Section 10 shall inure to the benefit of such
former Agent and such former Agent shall not by reason of such resignation be
deemed to be released from liability for any actions taken or not taken by it
while it was an Agent under this Agreement.


 


10.15       Agent’s Fee.


 


The Borrower shall
pay to the Agent a nonrefundable fee (the “Agent’s Fee”) under the terms of a
letter (the “Agent’s Letter”) between the Borrower and Agent, as amended from
time to time.


 


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10.16       Availability of Funds.


 


The Agent may
assume that each Lender has made or will make the proceeds of a Loan available
to the Agent unless the Agent shall have been notified by such Lender on or
before the later of:  (i) the close
of Business on the Business Day preceding the Borrowing Date with respect to
such Loan or (ii) two (2) hours before the time on which the Agent
actually funds the proceeds of such Loan to the Borrower (whether using its own
funds pursuant to this Section 10.16 or using proceeds deposited with the
Agent by the Lenders and whether such funding occurs before or after the time
on which Lenders are required to deposit the proceeds of such Loan with the
Agent).  The Agent may, in reliance upon
such assumption (but shall not be required to), make available to the Borrower
a corresponding amount.  If such
corresponding amount is not in fact made available to the Agent by such Lender,
the Agent shall be entitled to recover such amount on demand from such Lender
(or, if such Lender fails to pay such amount forthwith upon such demand from
the Borrower) together with interest thereon, in respect of each day during the
period commencing on the date such amount was made available to the Borrower
and ending on the date the Agent recovers such amount, at a rate per annum equal
to:  (i) the Federal Funds Effective
Rate during the first three (3) days after such interest shall begin to
accrue and (ii) the applicable interest rate in respect of such Loan after
the end of such three-day period.


 


10.17       Calculations.


 


In the absence of
gross negligence or willful misconduct, the Agent shall not be liable for any
error in computing the amount payable to any Lender whether in respect of the
Loans, fees or any other amounts due to the Lenders under this Agreement.  In the event an error in computing any amount
payable to any Lender is made, the Agent, the Borrower and each affected Lender
shall, forthwith upon discovery of such error, make such adjustments as shall
be required to correct such error, and any compensation therefor will be
calculated at the Federal Funds Effective Rate.


 


10.18       No Reliance on Agent’s Customer
Identification Program.


 


Each Lender
acknowledges and agrees that neither such Lender, nor any of its Affiliates,
participants or assignees, may rely on the Agent to carry out such Lender’s,
Affiliate’s, participant’s or assignee’s customer identification program, or
other obligations required or imposed under or pursuant to the USA Patriot Act
or the regulations thereunder, including the regulations contained in 31 CFR 103.121
(as hereafter amended or replaced, the “CIP Regulations”), or any other
Anti-Terrorism Law, including any programs involving any of the following items
relating to or in connection with any of the Loan Parties, their Affiliates or
their agents, the Loan Documents or the transactions hereunder or contemplated
hereby:  (1) any identity
verification procedures, (2) any recordkeeping, (3) comparisons with
government lists, (4) customer notices or (5) other procedures
required under the CIP Regulations or such other Laws.


 


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10.19       Beneficiaries.


 


Except as
expressly provided herein, the provisions of this Section 10 are solely
for the benefit of the Agent and the Lenders, and the Loan Parties shall not
have any rights to rely on or enforce any of the provisions hereof.  In performing its functions and duties under
this Agreement, the Agent shall act solely as agent of the Lenders and does not
assume and shall not be deemed to have assumed any obligation toward or
relationship of agency or trust with or for any of the Loan Parties.


 


11.           MISCELLANEOUS


 


11.1         Modifications,
Amendments or Waivers.


 


With the written
consent of the Required Lenders, the Agent, acting on behalf of all the
Lenders, and the Borrower, on behalf of the Loan Parties, may from time to time
enter into written agreements amending or changing any provision of this
Agreement or any other Loan Document or the rights of the Lenders or the Loan
Parties hereunder or thereunder, or may grant written waivers or consents to a
departure from the due performance of the Obligations of the Loan Parties
hereunder or thereunder.  Any such
agreement, waiver or consent made with such written consent shall be effective
to bind all the Lenders and the Loan Parties; provided that, without the
written consent of all the Lenders, no such agreement, waiver or consent may be
made which will:


 


11.1.1      Increase of Commitment; Extension of
Expiration Date.


 


Increase the amount of
the Revolving Credit Commitment of any Lender hereunder or extend the
Expiration Date, except as pursuant to Section 2.10;


 


11.1.2      Extension of Payment; Reduction of Principal,
Interest or Fees; Modification of Terms of Payment.


 


Whether or not any Loans
are outstanding, extend the time for payment of principal or interest of any
Loan, the Commitment Fee or any other fee payable to any Lender (other than the
Agent’s Fee and any fees paid to the Issuing Lender), or reduce the principal
amount of or the rate of interest borne by any Loan or reduce the Commitment
Fee or any other fee payable to any Lender (other than the Agent’s Fee and any
fees paid to the Issuing Lender), or otherwise affect the terms of payment of
the principal of or interest of any Loan, the Commitment Fee or any other fee
payable to any Lender;


 


11.1.3      Release of Collateral or Guarantor.


 


Except for sales of
assets permitted by Section 8.2.7 [Disposition of Assets or Subsidiaries],
release any Collateral consisting of capital stock or other ownership interests
of any Loan Party or any of its Subsidiaries or substantially all of the assets
of any Loan Party, any Guarantor from its Obligations under the Guaranty
Agreement or any other security for any of the Loan Parties’ Obligations
provided that the foregoing consent shall not be required in connection


 


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with any dividend
and distribution otherwise permitted by this Agreement pursuant to Section 8.2.5(i),
which such consent is given solely by the Agent pursuant to Section 11.20;
or


 


11.1.4      Miscellaneous.


 


Amend Section 5.2
[Pro Rata Treatment of Lenders], 10.6 [Exculpatory Provisions, Etc.] or 10.13
[Equalization of Lenders] or this Section 11.1, alter any provision
regarding the pro rata treatment of the Lenders, change the definition of
Required Lenders, or change any requirement providing for the Lenders or the
Required Lenders to authorize the taking of any action hereunder;


 


provided,
further, that no agreement, waiver or consent which would modify the interests,
rights or obligations of the Agent in its capacity as Agent or as the issuer of
Letters of Credit shall be effective without the written consent of the Agent.


 


11.2         No
Implied Waivers; Cumulative Remedies; Writing Required.


 


No course of
dealing and no delay or failure of the Agent or any Lender in exercising any
right, power, remedy or privilege under this Agreement or any other Loan
Document shall affect any other or future exercise thereof or operate as a
waiver thereof, nor shall any single or partial exercise thereof or any
abandonment or discontinuance of steps to enforce such a right, power, remedy
or privilege preclude any further exercise thereof or of any other right,
power, remedy or privilege.  The rights
and remedies of the Agent and the Lenders under this Agreement and any other
Loan Documents are cumulative and not exclusive of any rights or remedies which
they would otherwise have.  Any waiver,
permit, consent or approval of any kind or character on the part of any Lender
of any breach or default under this Agreement or any such waiver of any
provision or condition of this Agreement must be in writing and shall be
effective only to the extent specifically set forth in such writing.


 


11.3         Reimbursement
and Indemnification of Lenders by the Borrower; Taxes.


 


The Borrower
agrees unconditionally upon demand to pay or reimburse to each Lender (other
than the Agent, as to which the Borrower’s Obligations are set forth in Section 10.5
[Reimbursement of Agent By Borrower, Etc.]) and to save such Lender harmless
against:  (i) liability for the
payment of all reasonable out-of-pocket costs, expenses and disbursements
(including fees and expenses of counsel (including allocated costs of staff
counsel) for each Lender except with respect to (a) and (b) below),
incurred by such Lender:  (a) in
connection with the administration and interpretation of this Agreement, and
other instruments and documents to be delivered hereunder, (b) relating to
any amendments, waivers or consents pursuant to the provisions hereof, (c) in
connection with the enforcement of this Agreement or any other Loan Document,
or collection of amounts due hereunder or thereunder or the proof and
allowability of any claim arising under this Agreement or any other Loan
Document, whether in bankruptcy or receivership proceedings or otherwise, and (d) in
any workout or restructuring or in connection with the protection,
preservation, exercise or enforcement of any of the terms hereof or of any
rights hereunder or under any other Loan Document or in connection with any
foreclosure, collection or bankruptcy proceedings, or (ii) all
liabilities, obligations, losses, damages, penalties,


 


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actions, judgments, suits, costs, expenses or disbursements of any kind
or nature whatsoever which may be imposed on, incurred by or asserted against
such Lender, in its capacity as such, in any way relating to or arising out of
this Agreement or any other Loan Documents or any action taken or omitted by
such Lender hereunder or thereunder, provided that the Borrower shall
not be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements:  (A) if the same
results from such Lender’s gross negligence or willful misconduct, or (B) if
the Borrower was not given notice of the subject claim and the opportunity to
participate in the defense thereof, at its expense (except that the Borrower
shall remain liable to the extent such failure to give notice does not result
in a loss to the Borrower), or (C) if the same results from a compromise
or settlement agreement entered into without the consent of the Borrower, which
shall not be unreasonably withheld.  The
Lenders will attempt to minimize the fees and expenses of legal counsel for the
Lenders which are subject to reimbursement by the Borrower hereunder by
considering the usage of one law firm to represent the Lenders and the Agent if
appropriate under the circumstances.  The
Borrower agrees unconditionally to pay all stamp, document, transfer, recording
or filing taxes or fees and similar impositions now or hereafter determined by
the Agent or any Lender to be payable in connection with this Agreement or any
other Loan Document, and the Borrower agrees unconditionally to save the Agent
and the Lenders harmless from and against any and all present or future claims,
liabilities or losses with respect to or resulting from any omission to pay or
delay in paying any such taxes, fees or impositions.


 


11.4         Holidays.


 


Whenever payment
of a Loan to be made or taken hereunder shall be due on a day which is not a
Business Day such payment shall be due on the next Business Day (except as
provided in Section 4.2 [Interest Periods] with respect to Interest
Periods under the Euro-Rate Option) and such extension of time shall be
included in computing interest and fees, except that the Loans shall be due on
the Business Day preceding the Expiration Date if the Expiration Date is not a
Business Day.  Whenever any payment or
action to be made or taken hereunder (other than payment of the Loans) shall be
stated to be due on a day which is not a Business Day, such payment or action
shall be made or taken on the next following Business Day, and such extension
of time shall not be included in computing interest or fees, if any, in
connection with such payment or action.


 


11.5         Funding
by Branch, Subsidiary or Affiliate.


 


11.5.1      Notional Funding.


 


Each Lender shall have
the right from time to time, without notice to the Borrower, to deem any
branch, Subsidiary or Affiliate (which for the purposes of this Section 11.5
shall mean any corporation or association which is directly or indirectly
controlled by or is under direct or indirect common control with any
corporation or association which directly or indirectly controls such Lender)
of such Lender to have made, maintained or funded any Loan to which the
Euro-Rate Option applies at any time, provided that immediately
following (on the assumption that a payment were then due from the Borrower to
such other office), and as a result of such change, the Borrower would not be
under any greater financial


 


94

















 


obligation
pursuant to Section 5.5 [Additional Compensation in Certain Circumstances]
than it would have been in the absence of such change.  Notional funding offices may be selected by
each Lender without regard to such Lender’s actual methods of making,
maintaining or funding the Loans or any sources of funding actually used by or
available to such Lender.


 


11.5.2      Actual Funding.


 


Each Lender shall have
the right from time to time to make or maintain any Loan by arranging for a
branch, Subsidiary or Affiliate of such Lender to make or maintain such Loan
subject to the last sentence of this Section 11.5.2.  If any Lender causes a branch, Subsidiary or
Affiliate to make or maintain any part of the Loans hereunder, all terms and
conditions of this Agreement shall, except where the context clearly requires
otherwise, be applicable to such part of the Loans to the same extent as if
such Loans were made or maintained by such Lender, but in no event shall any
Lender’s use of such a branch, Subsidiary or Affiliate to make or maintain any
part of the Loans hereunder cause such Lender or such branch, Subsidiary or
Affiliate to incur any cost or expenses payable by the Borrower hereunder or
require the Borrower to pay any other compensation to any Lender (including any
expenses incurred or payable pursuant to Section 5.5 [Additional
Compensation in Certain Circumstances]) which would otherwise not be incurred.


 


11.6         Notices.


 


Any notice,
request, demand, direction or other communication (for purposes of this Section 11.6
only, a “Notice”) to be given to or made upon any party hereto under any
provision of this Agreement shall be given or made by telephone or in writing
(which includes means of electronic transmission (i.e., “e-mail”) or facsimile
transmission or by setting forth such Notice on a site on the World Wide Web (a
“Website Posting”) if Notice of such Website Posting (including the information
necessary to access such site) has previously been delivered to the applicable
parties hereto by another means set forth in this Section 11.6) in
accordance with this Section 11.6. 
Any such Notice must be delivered to the applicable parties hereto at
the addresses and numbers set forth under their respective names on Schedule
1.1(B) or in accordance with any subsequent unrevoked Notice from any
such party that is given in accordance with this Section 11.6.  Any Notice shall be effective:


 


(i)            In
the case of hand-delivery, when delivered;


 


(ii)           If given by mail, four (4) days
after such Notice is deposited with the United States Postal Service, with
first-class postage prepaid, return receipt requested;


 


(iii)          In the case of a
telephonic Notice, when a party is contacted by telephone, if delivery of such
telephonic Notice is confirmed no later than the next Business Day by hand
delivery, a facsimile or electronic transmission, a Website Posting or
overnight courier delivery of a confirmatory notice (received at or before noon
on such next Business Day);


 


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(iv)          In the case of a
facsimile transmission, when sent to the applicable party’s facsimile machine’s
telephone number if the party sending such Notice receives confirmation of the
delivery thereof from its own facsimile machine;


 


(v)           In the case of
electronic transmission, when actually received;


 


(vi)          In the case of a Website
Posting, upon delivery of a Notice of such posting (including the information
necessary to access such web site) by another means set forth in this Section 11.6;
and


 


(vii)         If given by any other
means (including by overnight courier), when actually received.


 


Any Lender giving
a Notice to a Loan Party shall concurrently send a copy thereof to the Agent,
and the Agent shall promptly notify the other Lenders of its receipt of such
Notice.


 


11.7         Severability.


 


The provisions of
this Agreement are intended to be severable. 
If any provision of this Agreement shall be held invalid or
unenforceable in whole or in part in any jurisdiction, such provision shall, as
to such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or enforceability
thereof in any other jurisdiction or the remaining provisions hereof in any
jurisdiction.


 


11.8         Governing
Law.


 


Each Letter of
Credit and Section 2.9 [Letter of Credit Subfacility] shall be subject to
the Uniform Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500, as the same may be
revised or amended from time to time, and to the extent not inconsistent
therewith, the internal laws of the Commonwealth of Pennsylvania without regard
to its conflict of laws principles, and the balance of this Agreement shall be
deemed to be a contract under the Laws of the Commonwealth of Pennsylvania and
for all purposes shall be governed by and construed and enforced in accordance
with the internal laws of the Commonwealth of Pennsylvania without regard to
its conflict of laws principles.


 


11.9         Prior
Understanding.


 


This Agreement and
the other Loan Documents supersede all prior understandings and agreements,
whether written or oral, between the parties hereto and thereto relating to the
transactions provided for herein and therein, including any prior
confidentiality agreements and commitments.


 


11.10       Duration; Survival.


 


All
representations and warranties of the Loan Parties contained herein or made in
connection herewith shall survive the making of Loans and issuance of Letters
of Credit and shall


 


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not be waived by the execution and delivery of this Agreement, any
investigation by the Agent or the Lenders, the making of Loans, issuance of
Letters of Credit, or payment in full of the Loans.  All covenants and agreements of the Loan
Parties contained in Sections 8.1 [Affirmative Covenants], 8.2 [Negative
Covenants] and 8.3 [Reporting Requirements] herein shall continue in full force
and effect from and after the date hereof so long as the Borrower may borrow or
request Letters of Credit hereunder and until termination of the Commitments
and payment in full of the Loans and expiration or termination of all Letters
of Credit.  All covenants and agreements
of the Borrower contained herein relating to the payment of principal,
interest, premiums, additional compensation or expenses and indemnification,
including those set forth in the Notes, Section 5 [Payments] and
Sections 10.5 [Reimbursement of Agent by Borrower, Etc.], 10.7
[Reimbursement of Agent by Lenders, Etc.] and 11.3 [Reimbursement of Lenders by
Borrower; Etc.], shall survive payment in full of the Loans, expiration or
termination of the Letters of Credit and termination of the Commitments.


 


11.11       Successors and Assigns.


 


(i)            This
Agreement shall be binding upon and shall inure to the benefit of the Lenders,
the Agent, the Loan Parties and their respective successors and assigns, except
that none of the Loan Parties may assign or transfer any of its rights and
Obligations hereunder or any interest herein. 
Each Lender may, at its own cost, make assignments of or sell
participations in all or any part of its Commitments and the Loans made by it
to one or more banks or other entities, subject to the consent (in the case of
any assignment) of the Borrower and the Agent with respect to any assignee, such
consent not to be unreasonably withheld,  provided
that:  (1) no consent of the
Borrower shall be required:  (A) if
an Event of Default exists and is continuing, or (B) in the case of an
assignment by a Lender to an Affiliate of such Lender, and (2) any assignment
by a Lender to a Person other than an Affiliate of such Lender may not be made
in amounts less than the lesser of $5,000,000 or the amount of the assigning
Lender’s Commitment.  In the case of an
assignment, upon receipt by the Agent of the Assignment and Assumption
Agreement, the Purchasing Lender shall have, to the extent of such assignment
(unless otherwise provided therein), the same rights, benefits and obligations
as it would have if it had been a signatory Lender hereunder, the Commitments shall
be adjusted accordingly, and upon surrender of any Note subject to such
assignment, the Borrower shall execute and deliver a new Note to the Purchasing
Lender in an amount equal to the amount of the Revolving Credit Commitment
assumed by it and a new Revolving Credit Note to the assigning Lender in an
amount equal to the Revolving Credit Commitment retained by it hereunder.  Any Transferor Lender which assigns any or
all of its Commitment or Loans to a Person other than an Affiliate of such
Lender shall pay to the Agent a service fee in the amount of $3,500 for each
assignment.  In the case of a
participation, the participant shall only have the rights specified in Section 9.2.3
[Set-off] (the participant’s rights against such Lender in respect of such participation
to be those set forth in the agreement executed by such Lender in favor of the
participant relating thereto and not to include any voting rights except with
respect to changes of the type referenced in Sections 11.1.1 [Increase of
Commitment, Etc.] or 11.1.2 [Extension of Payment, Etc.], all of such Lender’s
obligations under this Agreement or any other Loan Document shall remain
unchanged, and all amounts payable by any Loan Party hereunder or thereunder
shall be determined as if such Lender had not sold such participation.


 


97

















 


(ii)           Any
assignee or participant which is not incorporated under the Laws of the United
States of America or a state thereof shall deliver to the Borrower and the Agent
the form of certificate described in Section 11.17 relating to federal
income tax withholding.  Each Lender may
furnish any publicly available information concerning any Loan Party or its
Subsidiaries and any other information concerning any Loan Party or its
Subsidiaries in the possession of such Lender from time to time to assignees
and participants (including prospective assignees or participants), provided
that such assignees and participants agree to be bound by the provisions of Section 11.12
[Confidentiality].


 


(iii)          Notwithstanding any other provision in this
Agreement, any Lender may at any time pledge or grant a security interest in
all or any portion of its rights under this Agreement, its Note and the other
Loan Documents to any Federal Reserve Bank in accordance with Regulation A of
the FRB or U.S. Treasury Regulation 31 CFR Section 203.14 without notice
to or consent of the Borrower or the Agent. 
No such pledge or grant of a security interest shall release the
Transferor Lender of its obligations hereunder or under any other Loan
Document.


 


11.12       Confidentiality.


 


11.12.1    General.


 


The Agent and the Lenders
each agree to keep confidential all information obtained from any Loan Party or
its Subsidiaries which is nonpublic and confidential or proprietary in nature
(including any information the Borrower specifically designates as
confidential), except as provided below, and to use such information only in
connection with their respective capacities under this Agreement and for the
purposes contemplated hereby.  The Agent
and the Lenders shall be permitted to disclose such information:  (i) to outside legal counsel,
accountants and other professional advisors who need to know such information
in connection with the administration and enforcement of this Agreement,
subject to agreement of such Persons to maintain the confidentiality, (ii) to
assignees and participants as contemplated by Section 11.11, and
prospective assignees and participants, (iii) to the extent requested by
any bank regulatory authority or, with notice to the Borrower, as otherwise
required by applicable Law or by any subpoena or similar legal process, or in
connection with any investigation or proceeding arising out of the transactions
contemplated by this Agreement, (iv) if it becomes publicly available
other than as a result of a breach of this Agreement or becomes available from
a source not known to be subject to confidentiality restrictions, or (v) if
the Borrower shall have consented to such disclosure.


 


11.12.2    Sharing Information With Affiliates of the
Lenders.


 


Each Loan Party
acknowledges that from time to time financial advisory, investment banking and
other services may be offered or provided to the Borrower or one or more of its
Affiliates (in connection with this Agreement or otherwise) by any Lender or by
one or more Subsidiaries or Affiliates of such Lender and each of the Loan
Parties hereby authorizes each Lender to share any information delivered to
such Lender by such Loan Party and its Subsidiaries pursuant to this Agreement,
or in connection with the decision of such Lender to


 


98

















 


enter into this
Agreement, to any such Subsidiary or Affiliate of such Lender, it being
understood that any such Subsidiary or affiliate of any Lender receiving such
information shall be bound by the provisions of Section 11.12.1 as if it
were a Lender hereunder.  Such
authorization shall survive the repayment of the Loans and other Obligations
and the termination of the Commitments.


 


11.13       Counterparts.


 


This Agreement may
be executed by different parties hereto on any number of separate counterparts,
each of which, when so executed and delivered, shall be an original, and all
such counterparts shall together constitute one and the same instrument.


 


11.14       Agent’s or Lender’s Consent.


 


Whenever the Agent’s
or any Lender’s consent is required to be obtained under this Agreement or any
of the other Loan Documents as a condition to any action, inaction, condition
or event, the Agent and each Lender shall be authorized to give or withhold
such consent in its sole and absolute discretion and to condition its consent
upon the giving of additional collateral, the payment of money or any other
matter.


 


11.15       Exceptions.


 


The
representations, warranties and covenants contained herein shall be independent
of each other, and no exception to any representation, warranty or covenant
shall be deemed to be an exception to any other representation, warranty or
covenant contained herein unless expressly provided, nor shall any such
exceptions be deemed to permit any action or omission that would be in
contravention of applicable Law.


 


11.16       CONSENT TO FORUM; WAIVER
OF JURY TRIAL.


 


EACH LOAN
PARTY HEREBY IRREVOCABLY CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF THE COURT
OF COMMON PLEAS OF ALLEGHENY COUNTY AND THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF PENNSYLVANIA, AND WAIVES PERSONAL SERVICE OF ANY AND
ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY
CERTIFIED OR REGISTERED MAIL DIRECTED TO SUCH LOAN PARTY AT THE ADDRESSES
PROVIDED FOR IN SECTION 11.6 AND SERVICE SO MADE SHALL BE DEEMED TO BE
COMPLETED UPON ACTUAL RECEIPT THEREOF. 
EACH LOAN PARTY WAIVES ANY OBJECTION TO JURISDICTION AND VENUE OF ANY
ACTION INSTITUTED AGAINST IT AS PROVIDED HEREIN AND AGREES NOT TO ASSERT ANY
DEFENSE BASED ON LACK OF JURISDICTION OR VENUE. 
EACH LOAN PARTY, THE AGENT AND THE LENDERS HEREBY WAIVE TRIAL BY JURY IN
ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR
RELATED TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE COLLATERAL TO THE
FULL EXTENT PERMITTED BY LAW.


 


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11.17       Certifications From Lenders and Participants


 


11.17.1    Tax Withholding.


 


Each Lender or assignee
or participant of a Lender that is not incorporated under the Laws of the
United States of America or a state thereof (and, upon the written request of
the Agent, each other Lender or assignee or participant of a Lender) agrees
that it will deliver to each of the Borrower and the Agent two (2) duly
completed appropriate valid Withholding Certificates (as defined under §
1.1441-1(c)(16) of the Income Tax Regulations (the “Regulations”)) certifying
its status (i.e. U.S. or foreign person) and, if appropriate, making a claim of
reduced, or exemption from, U.S. withholding tax on the basis of an income tax
treaty or an exemption provided by the Internal Revenue Code.  The term “Withholding Certificate” means a Form W-9;
a Form W-8BEN; a Form W-8ECI; a Form W-8IMY and the related
statements and certifications as required under § 1.1441-1(e)(2) and/or (3) of
the Regulations; a statement described in § 1.871-14(c)(2)(v) of the
Regulations; or any other certificates under the Internal Revenue Code or
Regulations that certify or establish the status of a payee or beneficial owner
as a U.S. or foreign person.  Each
Lender, assignee or participant required to deliver to the Borrower and the
Agent a Withholding Certificate pursuant to the preceding sentence shall deliver
such valid Withholding Certificate as follows: 
(A) each Lender which is a party hereto on the Closing Date shall
deliver such valid Withholding Certificate at least five (5) Business Days
prior to the first date on which any interest or fees are payable by the
Borrower hereunder for the account of such Lender; (B) each assignee or
participant shall deliver such valid Withholding Certificate at least five (5) Business
Days before the effective date of such assignment or participation (unless the
Agent in its sole discretion shall permit such assignee or participant to
deliver such valid Withholding Certificate less than five (5) Business
Days before such date in which case it shall be due on the date specified by
the Agent).  Each Lender, assignee or participant
which so delivers a valid Withholding Certificate further undertakes to deliver
to each of the Borrower and the Agent two (2) additional copies of such
Withholding Certificate (or a successor form) on or before the date that such
Withholding Certificate expires or becomes obsolete or after the occurrence of
any event requiring a change in the most recent Withholding Certificate so
delivered by it, and such amendments thereto or extensions or renewals thereof
as may be reasonably requested by the Borrower or the Agent.  Notwithstanding the submission of a
Withholding Certificate claiming a reduced rate of or exemption from U.S.
withholding tax, the Agent shall be entitled to withhold United States federal
income taxes at the full 30% withholding rate if in its reasonable judgment it
is required to do so under the due diligence requirements imposed upon a
withholding agent under § 1.1441-7(b) of the Regulations.  Further, the Agent is indemnified under §
1.1461-1(e) of the Regulations against any claims and demands of any
Lender or assignee or participant of a Lender for the amount of any tax it
deducts and withholds in accordance with regulations under § 1441 of the
Internal Revenue Code.


 


11.17.2    USA Patriot Act.


 


Each Lender or
assignee or participant of a Lender that is not incorporated under the Laws of
the United States of America or a state thereof (and is not excepted from the
certification requirement contained in Section 313 of the USA Patriot Act
and the applicable regulations because it is both:  (i) an affiliate of a depository
institution or foreign bank that


 


100

















 


maintains a physical presence in the United states or foreign county,
and (ii) subject to supervision by a banking authority regulating such
affiliated depository institution or foreign bank) shall deliver to the Agent
the certification, or, if applicable, recertification, certifying that such
Lender is not a “shell” and certifying to other matters as required by Section 313
of the USA Patriot Act and the applicable regulations:  (1) within ten (10) days after the
Closing Date, and (2) as such other times as are required under the USA
Patriot Act.


 


11.18       Joinder of Guarantors.


 


Any Subsidiary of
the Borrower which is required to join this Agreement as a Guarantor pursuant
to Section 8.2.9 [Subsidiaries, Partnerships and Joint Ventures] shall
execute and deliver to the Agent:  (i) a
Guarantor Joinder in substantially the form attached hereto as Exhibit 1.1(G)(1) pursuant
to which it shall join as a Guarantor each of the documents to which the
Guarantors are parties; (ii) documents in the forms described in Section 7.1
[First Loans] modified as appropriate to relate to such Subsidiary; and (iii) documents
necessary to grant and perfect Prior Security Interests to the Agent for the
benefit of the Lenders in all Collateral held by such Subsidiary.  The Loan Parties shall deliver such Guarantor
Joinder and related documents to the Agent within five (5) Business Days
after the date of the filing of such Subsidiary’s articles of incorporation if
the Subsidiary is a corporation, the date of the filing of its certificate of
limited partnership if it is a limited partnership or the date of its
organization if it is an entity other than a limited partnership or
corporation.


 


11.19       Acknowledgment.


 


Each Loan Party and each Lender hereby acknowledges and agrees
that:  (i) the contemplated initial
public offering involving the Borrower (the “IPO”) has been postponed and (ii) each
Lender agrees to undertake a good faith review of any amendment to this
Agreement proposed by the Borrower and the other Loan Parties in connection
with any potential future IPO; provided, however, that the
foregoing in no way obligates any Lender to agree to enter into any such
proposed amendment.


 


11.20       Certain Actions by Agent.


 


Each Lender hereby
expressly agrees and irrevocably authorizes the Agent that, so long as no Event
of Default exists (as certified by the Loan Parties to the Agent):  (i) the Agent, upon request of the
Borrower, may in connection with any sale, transfer, lease, disposition, merger
or other transaction permitted by this Agreement release Collateral or release
any Guarantor from the Obligations under the Loan Documents other than the
Intercompany Subordination Agreement and (ii) the Agent, upon request of
the Borrower, may in connection with any sale of the Borrower’s member
interests permitted by this Agreement, release Wexford’s pledge of the member
interests being sold in an amount not to exceed 25% of the member interests of
the Borrower, provided, however, that the purchaser of such
member interests executes a Pledge Agreement (Borrower) in a form substantially
similar to Exhibit 1.1(P)(3) and takes any other actions
related to such pledge as requested by the Agent.


 


101

















 


[SIGNATURE PAGE FOLLOWS]


 


102

















 


[SIGNATURE
PAGE - CREDIT AGREEMENT]


 


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


 


	
  ATTEST:

  	
   

  	
  CAM HOLDINGS LLC,
  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Roy B. Honaker

  	
   

  	
  By:

  	
  /s/ Richard A. Boone

  	
  (SEAL)

  
	
  Name:

  	
  Roy B. Honaker

  	
   

  	
  Name:

  	
  Richard A. Boone

  
	
  Title:

  	
  VP & Asst
  Secretary

  	
   

  	
  Title:

  	
  SVP & CFO

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CAM
  MINING LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Richard A. Boone

  
	
   

  	
   

  	
  Name:

  	
  Richard A. Boone

  
	
   

  	
   

  	
  Title:

  	
  SVP & CFO

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CAM-BB
  LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Richard A. Boone

  
	
   

  	
   

  	
  Name:

  	
  Richard A. Boone

  
	
   

  	
   

  	
  Title:

  	
  SVP & CFO

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CAM-KENTUCKY
  REAL ESTATE LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Richard A. Boone

  
	
   

  	
   

  	
  Name:

  	
  Richard A. Boone

  
	
   

  	
   

  	
  Title:

  	
  SVP & CFO

  



 

















 


[SIGNATURE PAGE - CREDIT
AGREEMENT]


 


 


	
   

  	
  CAM-OHIO HOLDINGS LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard A. Boone

  
	
   

  	
  Name:

  	
  Richard
  A. Boone

  
	
   

  	
  Title:

  	
  SVP &
  CFO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CAM COAL TRADING LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard A. Boone

  
	
   

  	
  Name:

  	
  Richard
  A. Boone

  
	
   

  	
  Title:

  	
  SVP &
  CFO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LEESVILLE LAND, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard A. Boone

  
	
   

  	
  Name:

  	
  Richard
  A. Boone

  
	
   

  	
  Title:

  	
  SVP
  & CFO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CAM
  AIRCRAFT LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard A. Boone

  
	
   

  	
  Name:

  	
  Richard
  A. Boone

  
	
   

  	
  Title:

  	
  SVP
  & CFO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CAM-OHIO
  LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard A. Boone

  
	
   

  	
  Name:

  	
  Richard
  A. Boone

  
	
   

  	
  Title:

  	
  SVP
  & CFO

  
							



 

















 


[SIGNATURE PAGE - CREDIT
AGREEMENT]


 


 


	
   

  	
  CAM-OHIO REAL ESTATE LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard A. Boone

  
	
   

  	
  Name:

  	
  Richard
  A. Boone

  
	
   

  	
  Title:

  	
  SVP &
  CFO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SPRINGDALE LAND, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard A. Boone

  
	
   

  	
  Name:

  	
  Richard
  A. Boone

  
	
   

  	
  Title:

  	
  SVP &
  CFO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CAM-COLORADO LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard A. Boone

  
	
   

  	
  Name:

  	
  Richard
  A. Boone

  
	
   

  	
  Title:

  	
  SVP
  & CFO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CAM-ILLINOIS
  LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard A. Boone

  
	
   

  	
  Name:

  	
  Richard
  A. Boone

  
	
   

  	
  Title:

  	
  SVP
  & CFO

  
							



 

















 


[SIGNATURE PAGE - CREDIT
AGREEMENT]


 


 


	
   

  	
  PNC BANK, NATIONAL ASSOCIATION,

  individually and as Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Holly L. Kay

  
	
   

  	
  Name:

  	
  Holly
  L. Kay

  
	
   

  	
  Title:

  	
  Corporate
  Banking Officer

  
					



 














 


[SIGNATURE PAGE - CREDIT
AGREEMENT]


 


 


	
   

  	
  BANK OF AMERICA, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Adam Fey

  
	
   

  	
  Name:

  	
  Adam
  Fey

  
	
   

  	
  Title:

  	
  Vice
  President

  
					



 

















 


[SIGNATURE
PAGE - CREDIT AGREEMENT]


 


 


	
   

  	
  THE HUNTINGTON NATIONAL BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ L. Blair DeVan

  
	
   

  	
  Name:

  	
  L.
  Blair DeVan

  
	
   

  	
  Title:

  	
  Vice
  President

  
					



 

















 


[SIGNATURE
PAGE - CREDIT AGREEMENT]


 


 


	
   

  	
  NATIONAL CITY BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David M. Metz

  
	
   

  	
  Name:

  	
  David
  M. Metz

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  
					



 

















 


[SIGNATURE
PAGE - CREDIT AGREEMENT]


 


 


	
   

  	
  RAYMOND JAMES BANK, FSB, individually
  and as Co-Documentation Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas F. Macina

  
	
   

  	
  Name:

  	
  Thomas
  F. Macina

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  
					



 

















 


[SIGNATURE
PAGE - CREDIT AGREEMENT]


 


 


	
   

  	
  ROYAL BANK OF CANADA.,
  individually and as Co-Documentation Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Don J. McKinnerney

  
	
   

  	
  Name:

  	
  Don.
  J McKinnerney

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  
					



 

















 


[SIGNATURE
PAGE - CREDIT AGREEMENT]


 


 


	
   

  	
  UNION BANK OF CALIFORNIA, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bryan Read

  
	
   

  	
  Name:

  	
  Bryan
  Read

  
	
   

  	
  Title:

  	
  Vice
  President

  
					



 

















 


[SIGNATURE
PAGE - CREDIT AGREEMENT]


 


 


	
   

  	
  WACHOVIA BANK, NATIONAL
  ASSOCIATION,

  individually and as Co- Documentation Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jonathan R.
  Richardson

  
	
   

  	
  Name:

  	
  Jonathan
  R. Richardson

  
	
   

  	
  Title:

  	
  Vice
  President

  
					



 














 


SCHEDULE 1.1(A)


 


Pricing
Grid-Variable Pricing and Fees Based on Leverage Ratio


 


	
  Level

  	
   

  	
  Applicable Leverage Ratio

  	
   

  	
  Euro-Rate

  Margin

  	
   

  	
  Base Rate

  Margin

  	
   

  	
  Commitment 

  Fee

  	
   

  	
  Applicable

  Letter of

  Credit Fee

  	
   

  
	
  I

  	
   

  	
  Less than or
  equal to 1.00 to 1.00

  	
   

  	
  1.00

  	
  %

  	
  0.00

  	
  %

  	
  .25

  	
  %

  	
  1.00

  	
  %

  
	
  II

  	
   

  	
  Greater than
  1.00 to 1.00 but less than or equal to 1.50 to 1.00

  	
   

  	
  1.25

  	
  %

  	
  0.00

  	
  %

  	
  .25

  	
  %

  	
  1.25

  	
  %

  
	
  III

  	
   

  	
  Greater than
  1.50 to 1.00 but less than or equal to 2.00 to 1.00

  	
   

  	
  1.50

  	
  %

  	
  0.00

  	
  %

  	
  .25

  	
  %

  	
  1.50

  	
  %

  
	
  IV

  	
   

  	
  Greater than
  2.00 to 1.00

  	
   

  	
  1.75

  	
  %

  	
  0.00

  	
  %

  	
  .25

  	
  %

  	
  1.75

  	
  %

  



 


For purposes of
determining the Applicable Margin and the Applicable Letter of Credit Fee Rate:


 


(a)           As of the Closing Date, the
Applicable Margin and Applicable Letter of Credit Fee Rate shall be such rates
determined in accordance with paragraph (b) below, provided
that, for the period beginning with the Closing Date and ending upon the
Financials Delivery Date for the March 31, 2007 Compliance Certificate,
such rates shall be no less than the respective amounts set forth under Level
III of this Schedule 1.1(A) set forth above.


 


(b)           It is expressly agreed that after the
Closing Date, the Applicable Margin and the Applicable Letter of Credit Fee
Rate shall be determined based upon Schedule 1.1(A) above; provided,
however, that the Applicable Margin and the Applicable Letter of Credit
Fee Rate shall be set as of the Financials Delivery Date regardless of the
actual date that a Compliance Certificate is provided to the Lenders.


 

















 


SCHEDULE 1.1(B)


 


COMMITMENTS OF LENDERS AND ADDRESSES FOR NOTICES


 


Part 1
- Commitments of Lenders and Addresses for Notices to Lenders


 


	
  Lender

  	
   

  	
  Amount
  of

  Commitment for

  Revolving Credit

  Loans

  	
   

  	
  Ratable
  Share

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Bank of America, N.A.

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
  12.000000000

  	
  %

  
	
  Address:

  	
   

  	
  100 Federal Street

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Mail Code MA5-100-09-08

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Boston, Massachusetts
  02110

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
  Robert Valbona

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone:

  	
   

  	
  (617) 434-3384

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telecopy:

  	
   

  	
  (617) 434-3652

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Email:

  	
   

  	
  robert.d.valbona@bankofamerica.com

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  The Huntington National
  Bank

  	
   

  	
  $

  	
  10,000,000

  	
   

  	
  8.000000000

  	
  %

  
	
  Address:

  	
   

  	
  900 Lee Street - 2nd Floor

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Charleston, West
  Virginia 25301

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
  L. Blair DeVan, Vice
  President

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone:

  	
   

  	
  (304) 348-7138

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telecopy:

  	
   

  	
  (304) 348-5055

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Email:

  	
   

  	
  blair.devan@huntington.com

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  National City Bank

  	
   

  	
  $

  	
  18,500,000

  	
   

  	
  14.800000000

  	
  %

  
	
  Address:

  	
   

  	
  101 South Fifth Street,
  31-T37M

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Louisville, Kentucky
  40202

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
  David M. Metz, Senior
  Vice President

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone:

  	
   

  	
  (502) 581-7631

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telecopy:

  	
   

  	
  (502) 581-6365

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Email:

  	
   

  	
  david.metz@nationalcity.com

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


	
  Name:

  	
   

  	
  PNC Bank, National
  Association

  	
   

  	
  $

  	
  18,500,000

  	
   

  	
  14.800000000

  	
  %

  
	
  Address:

  	
   

  	
  One PNC Plaza

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  249 Fifth Avenue

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Pittsburgh,
  Pennsylvania 15222

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
  Christopher N. Moravec

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Senior Vice President

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone:

  	
   

  	
  (412) 762-2540

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telecopy:

  	
   

  	
  (412) 762-2571

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Email:

  	
   

  	
  christopher.moravec@pnc.com

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Raymond James Bank, FSB

  	
   

  	
  $

  	
  16,000,000

  	
   

  	
  12.800000000

  	
  %

  
	
  Address:

  	
   

  	
  710 Carillon Parkway

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  St. Petersburg, Florida
  33716

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
  Andrew D. Hahn, Vice
  President

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone:

  	
   

  	
  (727) 567-7762

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telecopy:

  	
   

  	
  (727) 567-8830

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Email:

  	
   

  	
  andrew.hahn@raymondjames.com

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Royal Bank of Canada

  	
   

  	
  $

  	
  16,000,000

  	
   

  	
  12.800000000

  	
  %

  
	
  Address:

  	
   

  	
  3900 Williams Tower

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2800 Post Oak Boulevard

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Houston, Texas 77056

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
  Don McKinnerney

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone:

  	
   

  	
  (713) 403-5607

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telecopy:

  	
   

  	
  (713) 403-5624

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Email:

  	
   

  	
  don.mckinnerney@rbccm.com

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Union Bank of
  California, N.A.

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
  12.000000000

  	
  %

  
	
  Address:

  	
   

  	
  Energy Capital Services

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  445 S. Figueroa Street,
  15th Floor

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Los Angeles, California
  90071

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
  Bryan Read, Vice
  President

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone:

  	
   

  	
  (213) 236-4128

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telecopy:

  	
   

  	
  (213) 236-4096

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Email:

  	
   

  	
  bryan.read@uboc.com

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Wachovia Bank, National
  Association

  	
   

  	
  $

  	
  16,000,000

  	
   

  	
  12.800000000

  	
  %

  
	
  Address:

  	
   

  	
  201 S. Jefferson
  Street, 2nd Floor

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Roanoke, Virginia 24011

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
  Jonathan R. Richardson,

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Vice President

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone:

  	
   

  	
  (540) 563-7691

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telecopy:

  	
   

  	
  (540) 563-6320

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Email:

  	
   

  	
  jonathan.richardson@wachovia.com

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
  $

  	
  125,000,000

  	
   

  	
  100

  	
  %

  



 


2

















 


SCHEDULE 1.1(B)


 


COMMITMENTS OF LENDERS AND ADDRESSES FOR NOTICES


 


Part 2
- Addresses for Notices to Borrower and Guarantors:


 


	
  AGENT

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  PNC Bank, National
  Association

  
	
  Address:

  	
   

  	
  One PNC Plaza

  
	
   

  	
   

  	
  249 Fifth Avenue

  
	
   

  	
   

  	
  Pittsburgh,
  Pennsylvania 15222

  
	
  Attention:

  	
   

  	
  Christopher N. Moravec

  
	
  Telephone:

  	
   

  	
  (412) 762-2540

  
	
  Telecopy:

  	
   

  	
  (412) 762-2571

  
	
  Email:

  	
   

  	
  christopher.moravec@pnc.com

  
	
   

  	
   

  	
   

  
	
  BORROWER:

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  CAM Holdings LLC

  
	
  Address:

  	
   

  	
  265 Hambley Boulevard

  
	
   

  	
   

  	
  Pikeville, KY 41501

  
	
  Attention:

  	
   

  	
  Richard A. Boone, CFO

  
	
  Telephone:

  	
   

  	
  (606) 432-3900

  
	
  Telecopy:

  	
   

  	
  (606) 639-9685

  
	
  Email:

  	
   

  	
  rboone@camcoal.com

  
	
   

  	
   

  	
   

  
	
  with a copy to:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  3120Wall Street,
  Suite 310

  
	
   

  	
   

  	
  Lexington, KY 40513

  
	
  Attention:

  	
   

  	
  Nicholas R.
  Glancy, Sr. V.P.

  
	
  Telephone:

  	
   

  	
  (858) 389-6500

  
	
  Telecopy:

  	
   

  	
  (859) 389-6588

  
	
  Email:

  	
   

  	
  nglancy@camcoal.com

  



 


3

















 


	
  GUARANTORS:

  
	
   

  
	
  Name:

  	
   

  	
  CAM Aircraft LLC

  
	
  Address:

  	
   

  	
  265 Hambley
  Boulevard

  
	
   

  	
   

  	
  Pikeville, KY
  41501

  
	
  Attention:

  	
   

  	
  Richard A.
  Boone, CFO

  
	
  Telephone:

  	
   

  	
  (606) 432-3900

  
	
  Telecopy:

  	
   

  	
  (606) 639-9685

  
	
  Email:

  	
   

  	
  rboone@camcoal.com

  
	
   

  
	
  with a copy to:

  
	
   

  
	
  Address:

  	
   

  	
  3120Wall Street,
  Suite 310

  
	
   

  	
   

  	
  Lexington, KY 40513

  
	
  Attention:

  	
   

  	
  Nicholas R.
  Glancy, Sr. V.P.

  
	
  Telephone:

  	
   

  	
  (858) 389-6500

  
	
  Telecopy:

  	
   

  	
  (859) 389-6588

  
	
  Email:

  	
   

  	
  nglancy@camcoal.com

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  CAM-BB LLC

  
	
  Address:

  	
   

  	
  265 Hambley Boulevard

  
	
   

  	
   

  	
  Pikeville, KY 41501

  
	
  Attention:

  	
   

  	
  Richard A. Boone, CFO

  
	
  Telephone:

  	
   

  	
  (606) 432-3900

  
	
  Telecopy:

  	
   

  	
  (606) 639-9685

  
	
  Email:

  	
   

  	
  rboone@camcoal.com

  
	
   

  
	
  with
  a copy to:

  
	
   

  
	
  Address:

  	
   

  	
  3120Wall Street,
  Suite 310

  
	
   

  	
   

  	
  Lexington, KY 40513

  
	
  Attention:

  	
   

  	
  Nicholas R.
  Glancy, Sr. V.P.

  
	
  Telephone:

  	
   

  	
  (858) 389-6500

  
	
  Telecopy:

  	
   

  	
  (859) 389-6588

  
	
  Email:

  	
   

  	
  nglancy@camcoal.com

  
	
   

  
	
   

  
	
  Name:

  	
   

  	
  CAM Coal Trading
  LLC

  
	
  Address:

  	
   

  	
  265 Hambley Boulevard

  
	
   

  	
   

  	
  Pikeville, KY 41501

  
	
  Attention:

  	
   

  	
  Richard A. Boone, CFO

  
	
  Telephone:

  	
   

  	
  (606) 432-3900

  
	
  Telecopy:

  	
   

  	
  (606) 639-9685

  
	
  Email:

  	
   

  	
  rboone@camcoal.com

  



 


4

















 


	
  with
  a copy to:

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  3120Wall Street,
  Suite 310

  
	
   

  	
   

  	
  Lexington, KY 40513

  
	
  Attention:

  	
   

  	
  Nicholas R.
  Glancy, Sr. V.P.

  
	
  Telephone:

  	
   

  	
  (858) 389-6500

  
	
  Telecopy:

  	
   

  	
  (859) 389-6588

  
	
  Email:

  	
   

  	
  nglancy@camcoal.com

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  CAM-Colorado LLC

  
	
  Address:

  	
   

  	
  265 Hambley Boulevard

  
	
   

  	
   

  	
  Pikeville, KY 41501

  
	
  Attention:

  	
   

  	
  Richard A. Boone, CFO

  
	
  Telephone:

  	
   

  	
  (606) 432-3900

  
	
  Telecopy:

  	
   

  	
  (606) 639-9685

  
	
  Email:

  	
   

  	
  rboone@camcoal.com

  
	
   

  
	
  with
  a copy to:

  
	
   

  
	
  Address:

  	
   

  	
  3120Wall Street,
  Suite 310

  
	
   

  	
   

  	
  Lexington, KY 40513

  
	
  Attention:

  	
   

  	
  Nicholas R.
  Glancy, Sr. V.P.

  
	
  Telephone:

  	
   

  	
  (858) 389-6500

  
	
  Telecopy:

  	
   

  	
  (859) 389-6588

  
	
  Email:

  	
   

  	
  nglancy@camcoal.com

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  CAM-Illinois LLC

  
	
  Address:

  	
   

  	
  265 Hambley Boulevard

  
	
   

  	
   

  	
  Pikeville, KY 41501

  
	
  Attention:

  	
   

  	
  Richard A. Boone, CFO

  
	
  Telephone:

  	
   

  	
  (606) 432-3900

  
	
  Telecopy:

  	
   

  	
  (606) 639-9685

  
	
  Email:

  	
   

  	
  rboone@camcoal.com

  
	
   

  
	
  with
  a copy to:

  
	
   

  
	
  Address:

  	
   

  	
  3120Wall Street,
  Suite 310

  
	
   

  	
   

  	
  Lexington, KY 40513

  
	
  Attention:

  	
   

  	
  Nicholas R.
  Glancy, Sr. V.P.

  
	
  Telephone:

  	
   

  	
  (858) 389-6500

  
	
  Telecopy:

  	
   

  	
  (859) 389-6588

  
	
  Email:

  	
   

  	
  nglancy@camcoal.com

  



 


5

















 


	
  Name:

  	
   

  	
  CAM-Kentucky
  Real Estate LLC

  
	
  Address:

  	
   

  	
  265 Hambley Boulevard

  
	
   

  	
   

  	
  Pikeville, KY 41501

  
	
  Attention:

  	
   

  	
  Richard A. Boone, CFO

  
	
  Telephone:

  	
   

  	
  (606) 432-3900

  
	
  Telecopy:

  	
   

  	
  (606) 639-9685

  
	
  Email:

  	
   

  	
  rboone@camcoal.com

  
	
   

  
	
  with
  a copy to:

  
	
   

  
	
  Address:

  	
   

  	
  3120Wall Street,
  Suite 310

  
	
   

  	
   

  	
  Lexington, KY 40513

  
	
  Attention:

  	
   

  	
  Nicholas R.
  Glancy, Sr. V.P.

  
	
  Telephone:

  	
   

  	
  (858) 389-6500

  
	
  Telecopy:

  	
   

  	
  (859) 389-6588

  
	
  Email:

  	
   

  	
  nglancy@camcoal.com

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  CAM Mining LLC

  
	
  Address:

  	
   

  	
  265 Hambley Boulevard

  
	
   

  	
   

  	
  Pikeville, KY 41501

  
	
  Attention:

  	
   

  	
  Richard A. Boone, CFO

  
	
  Telephone:

  	
   

  	
  (606) 432-3900

  
	
  Telecopy:

  	
   

  	
  (606) 639-9685

  
	
  Email:

  	
   

  	
  rboone@camcoal.com

  
	
   

  
	
  with
  a copy to:

  
	
   

  
	
  Address:

  	
   

  	
  3120Wall Street,
  Suite 310

  
	
   

  	
   

  	
  Lexington, KY 40513

  
	
  Attention:

  	
   

  	
  Nicholas R.
  Glancy, Sr. V.P.

  
	
  Telephone:

  	
   

  	
  (858) 389-6500

  
	
  Telecopy:

  	
   

  	
  (859) 389-6588

  
	
  Email:

  	
   

  	
  nglancy@camcoal.com

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  CAM-Ohio
  Holdings LLC

  
	
  Address:

  	
   

  	
  265 Hambley Boulevard

  
	
   

  	
   

  	
  Pikeville, KY 41501

  
	
  Attention:

  	
   

  	
  Richard A. Boone, CFO

  
	
  Telephone:

  	
   

  	
  (606) 432-3900

  
	
  Telecopy:

  	
   

  	
  (606) 639-9685

  
	
  Email:

  	
   

  	
  rboone@camcoal.com

  



 


6

















 


	
  with
  a copy to:

  
	
   

  
	
  Address:

  	
   

  	
  3120Wall Street,
  Suite 310

  
	
   

  	
   

  	
  Lexington, KY 40513

  
	
  Attention:

  	
   

  	
  Nicholas R.
  Glancy, Sr. V.P.

  
	
  Telephone:

  	
   

  	
  (858) 389-6500

  
	
  Telecopy:

  	
   

  	
  (859) 389-6588

  
	
  Email:

  	
   

  	
  nglancy@camcoal.com

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  CAM-Ohio LLC

  
	
  Address:

  	
   

  	
  265 Hambley Boulevard

  
	
   

  	
   

  	
  Pikeville, KY 41501

  
	
  Attention:

  	
   

  	
  Richard A. Boone, CFO

  
	
  Telephone:

  	
   

  	
  (606) 432-3900

  
	
  Telecopy:

  	
   

  	
  (606) 639-9685

  
	
  Email:

  	
   

  	
  rboone@camcoal.com

  
	
   

  
	
  with
  a copy to:

  
	
   

  
	
  Address:

  	
   

  	
  3120Wall Street,
  Suite 310

  
	
   

  	
   

  	
  Lexington, KY 40513

  
	
  Attention:

  	
   

  	
  Nicholas R.
  Glancy, Sr. V.P.

  
	
  Telephone:

  	
   

  	
  (858) 389-6500

  
	
  Telecopy:

  	
   

  	
  (859) 389-6588

  
	
  Email:

  	
   

  	
  nglancy@camcoal.com

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  CAM-Ohio Real
  Estate LLC

  
	
  Address:

  	
   

  	
  265 Hambley Boulevard

  
	
   

  	
   

  	
  Pikeville, KY 41501

  
	
  Attention:

  	
   

  	
  Richard A. Boone, CFO

  
	
  Telephone:

  	
   

  	
  (606) 432-3900

  
	
  Telecopy:

  	
   

  	
  (606) 639-9685

  
	
  Email:

  	
   

  	
  rboone@camcoal.com

  
	
   

  
	
  with
  a copy to:

  
	
   

  
	
  Address:

  	
   

  	
  3120Wall Street,
  Suite 310

  
	
   

  	
   

  	
  Lexington, KY 40513

  
	
  Attention:

  	
   

  	
  Nicholas R.
  Glancy, Sr. V.P.

  
	
  Telephone:

  	
   

  	
  (858) 389-6500

  
	
  Telecopy:

  	
   

  	
  (859) 389-6588

  
	
  Email:

  	
   

  	
  nglancy@camcoal.com

  



 


7

















 


	
  Name:

  	
   

  	
  Leesville Land,
  LLC

  
	
  Address:

  	
   

  	
  265 Hambley Boulevard

  
	
   

  	
   

  	
  Pikeville, KY 41501

  
	
  Attention:

  	
   

  	
  Richard A. Boone, CFO

  
	
  Telephone:

  	
   

  	
  (606) 432-3900

  
	
  Telecopy:

  	
   

  	
  (606) 639-9685

  
	
  Email:

  	
   

  	
  rboone@camcoal.com

  
	
   

  
	
  with
  a copy to:

  
	
   

  
	
  Address:

  	
   

  	
  3120Wall Street,
  Suite 310

  
	
   

  	
   

  	
  Lexington, KY 40513

  
	
  Attention:

  	
   

  	
  Nicholas R.
  Glancy, Sr. V.P.

  
	
  Telephone:

  	
   

  	
  (858) 389-6500

  
	
  Telecopy:

  	
   

  	
  (859) 389-6588

  
	
  Email:

  	
   

  	
  nglancy@camcoal.com

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Springdale Land,
  LLC

  
	
  Address:

  	
   

  	
  265 Hambley Boulevard

  
	
   

  	
   

  	
  Pikeville, KY 41501

  
	
  Attention:

  	
   

  	
  Richard A. Boone, CFO

  
	
  Telephone:

  	
   

  	
  (606) 432-3900

  
	
  Telecopy:

  	
   

  	
  (606) 639-9685

  
	
  Email:

  	
   

  	
  rboone@camcoal.com

  
	
   

  
	
  with
  a copy to:

  
	
   

  
	
  Address:

  	
   

  	
  3120Wall Street, Suite 310

  
	
   

  	
   

  	
  Lexington, KY 40513

  
	
  Attention:

  	
   

  	
  Nicholas R.
  Glancy, Sr. V.P.

  
	
  Telephone:

  	
   

  	
  (858) 389-6500

  
	
  Telecopy:

  	
   

  	
  (859) 389-6588

  
	
  Email:

  	
   

  	
  nglancy@camcoal.com

  



 


8