exv10w1






Exhibit 10.1


EXECUTION COPY




 

 









AMENDED AND RESTATED CREDIT AGREEMENT




Dated as of May 5, 2010



among



PATRIOT COAL CORPORATION,

as the Borrower,



BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender and

L/C Issuer



and



The Other Lenders Party Hereto



BANC OF AMERICA SECURITIES LLC,

as Joint Lead Arranger and Sole Lead Book Manager,



CITIGROUP GLOBAL MARKETS INC.

as Joint Lead Arranger



and



PNC CAPITAL MARKETS LLC.

as Joint Lead Arranger







 









BANK OF AMERICA, N.A.,

as Syndication Agent



and



FIFTH THIRD BANK and NATIXIS,

as Co-Documentation Agents



 

 












 









 














TABLE OF CONTENTS




	 	 	 	 	 	 	 
	Section	 	 	 	Page
	 
	 	 	 	 	 	 
	ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

	 
	 	 	 	 	 	 
	1.01

	 	Defined Terms
	 	 	1	 
	1.02

	 	Other Interpretive Provisions
	 	 	31	 
	1.03

	 	Accounting Terms
	 	 	32	 
	1.04

	 	Times of Day
	 	 	33	 
	1.05

	 	Letter of Credit Amounts
	 	 	33	 
	 
	 	 	 	 	 	 
	ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS

	 
	 	 	 	 	 	 
	2.01

	 	The Revolving Credit Loans
	 	 	33	 
	2.02

	 	Borrowings, Conversions and Continuations of Loans
	 	 	33	 
	2.03

	 	Letters of Credit
	 	 	35	 
	2.04

	 	Swing Line Loans
	 	 	44	 
	2.05

	 	Prepayments
	 	 	47	 
	2.06

	 	Termination or Reduction of Commitments
	 	 	49	 
	2.07

	 	Repayment of Loans
	 	 	49	 
	2.08

	 	Interest
	 	 	49	 
	2.09

	 	Fees
	 	 	50	 
	2.10

	 	Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate
	 	 	51	 
	2.11

	 	Evidence of Debt
	 	 	51	 
	2.12

	 	Payments Generally; Administrative Agent’s Clawback
	 	 	52	 
	2.13

	 	Sharing of Payments by Lenders
	 	 	53	 
	2.14

	 	Increase in Facility
	 	 	54	 
	 
	 	 	 	 	 	 
	ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY

	 
	 	 	 	 	 	 
	3.01

	 	Taxes
	 	 	55	 
	3.02

	 	Illegality
	 	 	58	 
	3.03

	 	Inability to Determine Rates
	 	 	58	 
	3.04

	 	Increased Costs; Reserves on Eurocurrency Rate Loans
	 	 	59	 
	3.05

	 	Compensation for Losses
	 	 	60	 
	3.06

	 	Mitigation Obligations; Replacement of Lenders
	 	 	61	 
	3.07

	 	Survival
	 	 	62	 
	 
	 	 	 	 	 	 
	ARTICLE IV

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

	 
	 	 	 	 	 	 
	4.01

	 	Conditions of Initial Credit Extension
	 	 	62	 
	4.02

	 	Conditions to all Credit Extensions
	 	 	64	 






i









 






	 	 	 	 	 	 	 
	Section	 	 	 	Page
	 
	 	 	 	 	 	 
	ARTICLE V

REPRESENTATIONS AND WARRANTIES

	 
	 	 	 	 	 	 
	5.01

	 	Existence, Qualification and Power
	 	 	65	 
	5.02

	 	Authorization; No Contravention
	 	 	65	 
	5.03

	 	Governmental Authorization; Other Consents
	 	 	66	 
	5.04

	 	Binding Effect
	 	 	66	 
	5.05

	 	Financial Statements; No Material Adverse Effect
	 	 	66	 
	5.06

	 	Litigation
	 	 	67	 
	5.07

	 	No Default
	 	 	67	 
	5.08

	 	Ownership of Property; Liens; Investments
	 	 	67	 
	5.09

	 	Environmental Compliance
	 	 	68	 
	5.10

	 	Mining
	 	 	69	 
	5.11

	 	Insurance
	 	 	69	 
	5.12

	 	Taxes
	 	 	69	 
	5.13

	 	ERISA Compliance
	 	 	70	 
	5.14

	 	Subsidiaries; Equity Interests; Loan Parties
	 	 	70	 
	5.15

	 	Margin Regulations; Investment Company Act
	 	 	71	 
	5.16

	 	Disclosure
	 	 	71	 
	5.17

	 	Compliance with Laws
	 	 	71	 
	5.18

	 	Intellectual Property; Licenses, Etc.
	 	 	71	 
	5.19

	 	Solvency
	 	 	72	 
	5.20

	 	Casualty, Etc.
	 	 	72	 
	5.21

	 	Labor Matters
	 	 	72	 
	5.22

	 	Collateral Documents
	 	 	72	 
	5.23

	 	Use of Proceeds
	 	 	72	 
	5.24

	 	Coal Act; Black Lung Act
	 	 	72	 
	5.25

	 	Activities and Liabilities of EACC Camps, Inc.
	 	 	73	 
	 
	 	 	 	 	 	 
	ARTICLE VI

AFFIRMATIVE COVENANTS

	 
	 	 	 	 	 	 
	6.01

	 	Financial Statements
	 	 	73	 
	6.02

	 	Certificates; Other Information
	 	 	74	 
	6.03

	 	Notices
	 	 	76	 
	6.04

	 	Payment of Obligations
	 	 	77	 
	6.05

	 	Preservation of Existence, Etc.
	 	 	77	 
	6.06

	 	Maintenance of Properties
	 	 	78	 
	6.07

	 	Maintenance of Insurance
	 	 	78	 
	6.08

	 	Compliance with Laws
	 	 	78	 
	6.09

	 	Books and Records
	 	 	78	 
	6.10

	 	Inspection Rights
	 	 	79	 
	6.11

	 	Use of Proceeds
	 	 	79	 
	6.12

	 	Covenant to Guarantee Obligations and Give Security
	 	 	79	 
	6.13

	 	Compliance with Environmental Laws
	 	 	83	 
	6.14

	 	Preparation of Environmental Reports
	 	 	83	 
	6.15

	 	Further Assurances
	 	 	84	 






ii









 






	 	 	 	 	 	 	 
	Section	 	 	 	Page
	 
	 	 	 	 	 	 
	6.16

	 	Compliance with Terms of Leaseholds and Related Documents
	 	 	84	 
	6.17

	 	[Reserved]
	 	 	84	 
	6.18

	 	[Reserved]
	 	 	84	 
	6.19

	 	Certain Long Term Liabilities and Environmental Reserves
	 	 	84	 
	6.20

	 	Mining Financial Assurances
	 	 	84	 
	6.21

	 	Post-Closing Obligations
	 	 	84	 
	 
	 	 	 	 	 	 
	ARTICLE VII

NEGATIVE COVENANTS

	 
	 	 	 	 	 	 
	7.01

	 	Liens
	 	 	85	 
	7.02

	 	Indebtedness
	 	 	87	 
	7.03

	 	Investments
	 	 	89	 
	7.04

	 	Fundamental Changes
	 	 	90	 
	7.05

	 	Dispositions
	 	 	91	 
	7.06

	 	Restricted Payments
	 	 	92	 
	7.07

	 	Change in Nature of Business
	 	 	93	 
	7.08

	 	Transactions with Affiliates
	 	 	93	 
	7.09

	 	Burdensome Agreements
	 	 	93	 
	7.10

	 	Use of Proceeds
	 	 	94	 
	7.11

	 	Financial Covenants
	 	 	94	 
	7.12

	 	Capital Expenditures
	 	 	94	 
	7.13

	 	Amendments of Organization Documents
	 	 	94	 
	7.14

	 	Accounting Changes
	 	 	94	 
	7.15

	 	Prepayments, Etc. of Indebtedness
	 	 	94	 
	7.16

	 	Amendment, Etc. of Related Documents and Indebtedness
	 	 	95	 
	7.17

	 	Limitation on Negative Pledge Clauses
	 	 	95	 
	 
	 	 	 	 	 	 
	ARTICLE VIII

EVENTS OF DEFAULT AND REMEDIES

	 
	 	 	 	 	 	 
	8.01

	 	Events of Default
	 	 	96	 
	8.02

	 	Remedies Upon Event of Default
	 	 	99	 
	8.03

	 	Application of Funds
	 	 	99	 
	 
	 	 	 	 	 	 
	ARTICLE IX

ADMINISTRATIVE AGENT

	 
	 	 	 	 	 	 
	9.01

	 	Appointment and Authority
	 	 	100	 
	9.02

	 	Rights as a Lender
	 	 	101	 
	9.03

	 	Exculpatory Provisions
	 	 	101	 
	9.04

	 	Reliance by Administrative Agent
	 	 	102	 
	9.05

	 	Delegation of Duties
	 	 	102	 
	9.06

	 	Resignation of Administrative Agent
	 	 	103	 
	9.07

	 	Non-Reliance on Administrative Agent and Other Lenders
	 	 	103	 
	9.08

	 	No Other Duties, Etc.
	 	 	104	 
	9.09

	 	Administrative Agent May File Proofs of Claim
	 	 	104	 






iii









 






	 	 	 	 	 	 	 
	Section	 	 	 	Page
	 
	 	 	 	 	 	 
	9.10

	 	Collateral and Guaranty Matters
	 	 	105	 
	9.11

	 	Indemnification
	 	 	105	 
	 
	 	 	 	 	 	 
	ARTICLE X

MISCELLANENOUS

	 
	 	 	 	 	 	 
	10.01

	 	Amendments, Etc.
	 	 	106	 
	10.02

	 	Notices; Effectiveness; Electronic Communications
	 	 	107	 
	10.03

	 	No Waiver; Cumulative Remedies
	 	 	109	 
	10.04

	 	Expenses; Indemnity; Damage Waiver
	 	 	109	 
	10.05

	 	Payments Set Aside
	 	 	111	 
	10.06

	 	Successors and Assigns
	 	 	112	 
	10.07

	 	Treatment of Certain Information; Confidentiality
	 	 	115	 
	10.08

	 	Right of Setoff
	 	 	116	 
	10.09

	 	Interest Rate Limitation
	 	 	116	 
	10.10

	 	Counterparts; Integration; Effectiveness
	 	 	116	 
	10.11

	 	Survival of Representations and Warranties
	 	 	117	 
	10.12

	 	Severability
	 	 	117	 
	10.13

	 	Replacement of Lenders
	 	 	117	 
	10.14

	 	Governing Law; Jurisdiction; Etc.
	 	 	118	 
	10.15

	 	Waiver of Jury Trial
	 	 	119	 
	10.16

	 	Delivery of Lender Addenda
	 	 	119	 
	10.17

	 	No Advisory or Fiduciary Responsibility
	 	 	119	 
	10.18

	 	USA PATRIOT Act Notice
	 	 	120	 
	10.19

	 	Time of the Essence
	 	 	120	 
	10.20

	 	Amendment and Restatement.
	 	 	120	 






iv









 






	 	 	 	 	 

	SCHEDULES	 	 

	 	 	 	 	 

	 	1.01	(a)	 	Subsidiary Guarantors

	 	1.01	(b)	 	Existing Letters of Credit

	 	4.01	(a)	 	Mortgaged Properties

	 	4.01	(b)	 	Mortgage Modifications

	 	5.08	(c)	 	Real Property

	 	5.09	 	 	Environmental Matters

	 	5.14	 	 	Subsidiaries and Other Equity Investments; Loan Parties

	 	5.18	 	 	Intellectual Property Matters

	 	5.21	 	 	Labor Matters

	 	6.08	 	 	Compliance with Laws

	 	6.13	 	 	Compliance with Environmental Laws

	 	6.21	 	 	Post-Closing Obligations

	 	7.01	 	 	Existing Liens

	 	7.02	 	 	Existing Indebtedness

	 	7.03	 	 	Existing Investments

	 	7.17	 	 	Negative Pledges

	 	10.02	 	 	Administrative Agent’s Office, Certain Addresses for Notices

	 	 	 	 	 

	EXHIBITS	 	 

	 	 	 	 	 

	Form of	 	 

	 	 	 	 	 

	 	A	 	 	Borrowing Notice

	 	B	 	 	Swing Line Loan Notice

	 	C	 	 	Note

	 	D	 	 	Compliance Certificate

	 	E	 	 	Assignment and Assumption

	 	F	 	 	Subsidiary Guaranty

	 	G	 	 	Mortgage

	 	H	 	 	Opinion of Davis Polk & Wardwell LLP

	 	I	 	 	Opinion of Joseph W. Bean, Esq.

	 	J	 	 	Lender Addendum








v











 





AMENDED AND RESTATED CREDIT AGREEMENT




          This AMENDED AND RESTATED CREDIT AGREEMENT (“Agreement”) is entered into as of May 5,
2010, among PATRIOT COAL CORPORATION, a Delaware corporation (the “Borrower”), each lender
from time to time party hereto (collectively, the “Lenders” and individually, a
“Lender”), and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C
Issuer.




PRELIMINARY STATEMENTS:




          WHEREAS, the Borrower, the lenders party thereto, Bank of America, N.A., as Administrative
Agent, and the other parties party thereto entered into that certain Credit Agreement, dated as of
October 31, 2007 (as amended by Amendment No. 1 to Credit Agreement, dated as of April 2, 2008, as
further amended by Amendment No. 2 to Credit Agreement, dated as of May 19, 2008, and as further
amended by Amendment No. 3 to Credit Agreement, dated as of September 25, 2008, the “Original
Credit Agreement”);




          WHEREAS, on the Original Closing Date and pursuant to the Original Credit Agreement, the
Lenders agreed to extend a revolving credit facility to be used by the Borrower for working capital
(including the issuance of letters of credit), capital expenditures and other lawful purposes;




          WHEREAS, on the Original Closing Date and pursuant to the terms of the Original Credit
Agreement, the L/C Issuer agreed to issue letters of credit, in each case, on the terms and subject
to the conditions set forth in the Original Credit Agreement; and




          WHEREAS, the Borrower has requested and the Lenders have agreed to an amendment and
restatement of the Original Credit Agreement as set forth herein.




          In consideration of the mutual covenants and agreements herein contained, the parties hereto
covenant and agree as follows:




ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS




          1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth
below:




          “Accounting Change” means changes in accounting principles required by the
promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting
Standards Board of the American Institute of Certified Public Accountants or, if applicable, the
Securities and Exchange Commission.




          “Acquired Assets” has the meaning specified in the definition of “Permitted
Acquisition”.




          “Acquired Entity” has the meaning specified in the definition of “Permitted Acquisition”.




 









 










          “Additional Extensions of Credit” has the meaning specified in Section 10.01.




          “Adjustment Date” means the date of receipt by the Administrative Agent of the
financial statements for the most recently completed fiscal period furnished pursuant to
Section 6.01, and the compliance certificate with respect to such financial statements
furnished pursuant to Section 6.02. For purposes of determining the Applicable Rate, the
first Adjustment Date shall be the third day following the date on which the financial statements
for the fiscal quarter ending September 30, 2010 furnished pursuant to Section 6.01 and the
related compliance certificate furnished pursuant to Section 6.02 are delivered to the
Administrative Agent.




          “Administrative Agent” means Bank of America in its capacity as administrative agent
under any of the Loan Documents, or any successor administrative agent.




          “Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 10.02, or such other address or account as
the Administrative Agent may from time to time notify to the Borrower and the Lenders.




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




          “Affiliate” means, with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.




          “Aggregate Commitments” means the Commitments of all the Lenders.




          “Agreement” means this Amended and Restated Credit Agreement.




          “Applicable Percentage” means, with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Facility represented by such Lender’s Commitment at
such time. If the commitment of each Lender to make Loans and the obligation of the L/C Issuer to
make L/C Credit Extensions have been terminated pursuant to Section 8.02, or if the
Commitments have expired, then the Applicable Percentage of each Lender in respect of the Facility
shall be determined based on the Applicable Percentage of such Lender in respect of the Facility
most recently in effect, giving effect to any subsequent assignments. The initial Applicable
Percentage of each Lender in respect of the Facility is set forth on Schedule 1 to the Lender
Addendum delivered by such Lender or in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable.




          “Applicable Rate” means, from time to time, the following percentages per annum, based
upon the Consolidated Net Leverage Ratio as set forth below:






2









 








	 	 	 	 	 	 	 	 	 
	 	 	Applicable Rate
	 	 	 	 	Eurocurrency Rate	 	 	 	 
	 	 	Consolidated Net	 	Loans and Letters	 	 	 	 
	Level	 	Leverage Ratio	 	of Credit	 	Base Rate Loans	 	Commitment Fee
	I
	 	≥ 2.50x
	 	4.250%
	 	3.250%
	 	0.750%
	II
	 	≥ 2.00x
	 	4.000%
	 	3.000%
	 	0.625%
	III
	 	≥ 1.50x
	 	3.750%
	 	2.750%
	 	0.625%
	IV
	 	≥ 1.00x
	 	3.500%
	 	2.500%
	 	0.500%
	V
	 	< 1.00x
	 	3.250%
	 	2.250%
	 	0.500%





provided, that (a) the Applicable Rate will be determined as of the last day of the
immediately preceding fiscal quarter; provided, that from the Restatement Date to the date
on which the Administrative Agent receives the Borrower’s compliance certificate for the fiscal
quarter ending September 30, 2010, the pricing will be at Level II, (b) the Applicable Rate
determined for any Adjustment Date (including the first Adjustment Date) shall remain in effect
until a subsequent Adjustment Date for which the Consolidated Net Leverage Ratio falls within a
different level, and (c) if the financial statements and related compliance certificate for any
fiscal period are not delivered by the date due pursuant to Sections 6.01 and 6.02,
the Applicable Rate shall be those set forth in Level I until the date of delivery of such
financial statements and compliance certificate, after which the Applicable Rate shall be based on
the Consolidated Net Leverage Ratio set forth in such compliance certificate.




          “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.




          “Arranger” means, collectively, (a) Banc of America Securities, in its capacity as a
joint lead arranger and sole book manager, (b) Citigroup Global Markets Inc., in its capacity as a
joint lead arranger, and (c) PNC Capital Markets LLC, in its capacity as a joint lead arranger.




          “Assignee Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.




          “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of
Exhibit E or any other form approved by the Administrative Agent.




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




          “Audited Financial Statements” means the audited consolidated balance sheet of the
Borrower and its Subsidiaries for the fiscal year ended December 31, 2009, and the related
consolidated statements of income or operations, changes in shareholders’ equity and cash flows for
such fiscal year of the Borrower and its Subsidiaries, including the notes thereto.




          “Availability Period” means the period from and including the Restatement Date to the
earliest of (i) the Maturity Date, (ii) the date of termination of the Commitments pursuant to
Section 2.06, and (iii) the date of termination of the commitment of each Lender to make


3









 







Revolving Credit Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions
pursuant to Section 8.02.




          “Banc of America Securities” means Banc of America Securities LLC and its successors.




          “Bank of America” means Bank of America, N.A. and its successors.




          “Bank of America Fee Letter” means the letter agreement, dated May 5, 2010, among the
Borrower, the Administrative Agent and Banc of America Securities.




          “Base Rate” means for any day a fluctuating rate per annum equal to the higher of (a)
the Federal Funds Rate plus 1/2 of 1%, (b) the Eurocurrency Rate plus 1% and (c)
the rate of interest in effect for such day as publicly announced from time to time by Bank of
America as its “prime rate.” The “prime rate” is a rate set by Bank of America based upon various
factors including Bank of America’s costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which may be priced at, above, or
below such announced rate. Any change in such rate announced by Bank of America shall take effect
at the opening of business on the day specified in the public announcement of such change.




          “Base Rate Loan” means a Revolving Credit Loan that bears interest based on the Base
Rate.




          “BBA LIBOR Daily Floating Rate” means a daily fluctuating rate of interest equal to
the rate per annum (rounded upwards to the nearest 1/100 of one percent) equal to BBA LIBOR, as
published by Reuters (or other commercially available source providing quotations of BBA LIBOR as
selected by the Swing Line Lender from time to time) as determined for each banking day at
approximately 11:00 a.m. London time two (2) London Banking Days prior to the date in question, for
U.S. Dollar deposits (for delivery on the first day of such interest period) with a one month term,
as adjusted from time to time, in the Swing Line Lender’s sole discretion for reserve requirements,
deposit insurance assessment rates and other regulatory costs. If such rate is not available at
such time for any reason, then the rate for that interest period will be determined by such
alternate method as reasonably selected by the Administrative Agent. A “London Banking Day” is a
day on which banks in London are open for business and dealing in offshore dollars.




          “Black Lung Act” means the Black Lung Benefits Act of 1972, 30 U.S.C. §§ 901, et seq.,
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 801, et seq., the Black Lung Benefits
Reform Act of 1977, Pub. L. No. 95-239, 92 Stat. 95 (1978), and the Black Lung Benefits Amendments
of 1981, Pub. L. No. 97-119, Title 11, 95 Stat. 1643, in each case as amended.




          “Black Lung Liability” means any liability or benefit obligations related to black
lung claims and benefits under the Black Lung Act, and liabilities and benefits related to
pneumoconiosis, silicosis, exposure to isocyanates or other lung disease arising under any
federal or state law, including any Mining Law.





4









 








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




          “Borrower Materials” has the meaning specified in Section 6.02.




          “Borrowing” means a Revolving Credit Borrowing or a Swing Line Borrowing, as the
context may require.




          “Borrowing Notice” means a notice of (a) a Revolving Credit Borrowing, (b) a
conversion of Revolving Credit Loans from one Type to the other, or (c) a continuation of
Eurocurrency Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall be
substantially in the form of Exhibit A.




          “Business” has the meaning specified in Section 5.09(b).




          “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office is located and, if such day relates to any Eurocurrency
Rate Loan, means any such day on which dealings in deposits in Dollars are conducted by and between
banks in the London interbank eurodollar market.




          “Capital Expenditures” means, with respect to any Person for any period, any
expenditure in respect of the purchase or other acquisition of any fixed or capital asset
(excluding normal replacements and maintenance which are properly charged to current operations);
provided, that Capital Expenditures for the Borrower and its Subsidiaries shall not include
Permitted Acquisitions during such period. For purposes of this definition, the purchase price of
equipment that is purchased substantially concurrently with the trade-in of existing equipment with
the proceeds of any non-ordinary course asset sales (provided, that the purchase is made
within 180 days after the sale) or with insurance proceeds shall be included in Capital
Expenditures only to the extent of the gross amount by which such purchase price exceeds the credit
granted by the seller of such equipment for the equipment being traded in at such time, the
proceeds of such asset sale or the amount of such insurance proceeds, as the case may be.




          “Capital Lease Obligations” means of any Person as of the date of determination, the
aggregate liability of such Person under Financing Leases reflected on a balance sheet of such
Person under GAAP.




          “Capital Stock” means any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all equivalent
ownership interests in a Person (other than a corporation) and any and all warrants or options to
purchase any of the foregoing, but excluding any securities convertible into or exchangeable for
shares of Capital Stock.




          “Cash Collateral Account” means a blocked, interest bearing deposit account of one or
more of the Loan Parties at Bank of America in the name of the Administrative Agent and
under the sole dominion and control of the Administrative Agent, and otherwise established in
a manner reasonably satisfactory to the Administrative Agent.




          “Cash Collateralize” has the meaning specified in Section 2.03(g).






5









 








          “Cash Equivalents” means any of the following types of Investments:





     (a) readily marketable obligations issued or directly and fully guaranteed or insured
by the United States of America or any agency or instrumentality thereof having maturities
of not more than 24 months from the date of acquisition thereof; provided, that the
full faith and credit of the United States of America is pledged in support thereof;




     (b) time deposits with, or insured certificates of deposit or bankers’ acceptances of,
any commercial bank that (i) (A) is a Lender or (B) is organized under the laws of the
United States of America, any state thereof or the District of Columbia or is the principal
banking subsidiary of a bank holding company organized under the laws of the United States
of America, any state thereof or the District of Columbia, and is a member of the Federal
Reserve System, (ii) issues (or the parent of which issues) commercial paper rated as
described in clause (c) of this definition and (iii) has combined capital and surplus of at
least $500,000,000, in each case with maturities of not more than twelve months from the
date of acquisition thereof;




     (c) repurchase obligations with a term of not more than 30 days for underlying
securities of the types described in clause (a), (b), and (f) entered into with any
financial institution meeting the qualifications specified in clause (b) above;




     (d) commercial paper issued by any Person organized under the laws of any state of the
United States of America and rated at least “Prime-1” (or the then equivalent grade) by
Moody’s or at least “A-1” (or the then equivalent grade) by S&P, in each case with
maturities of not more than 270 days from the date of acquisition thereof;




     (e) marketable short-term money market and similar securities having a rating of at
least P-2 or A-2 from either Moody’s or S&P, respectively (or, if at any time neither
Moody’s nor S&P shall be rating such obligations, an equivalent rating from another
nationally recognized statistical rating agency selected by the Borrower;




     (f) readily marketable direct obligations issued by any state or commonwealth of the
United States or any political subdivision or taxing authority thereof having an Investment
Grade Rating from either Moody’s or S&P with maturities of 12 months or less from the date
of acquisition;




     (g) Investments with average maturities of 12 months or less from the date of
acquisition in money market funds rated within the top three categories by S&P or Moody’s;
and




     (h) shares of investments companies registered under the Investment Company Act of
1940, substantially all of the investments of which are one or more of the types of
securities described in clauses (a) through (g) of this definition.



          “Cash Management Agreement” means any agreement to provide cash management services,
including treasury, depository, overdraft, credit or debit card, electronic funds transfer and
other cash management arrangements.





6









 








          “Cash Management Bank” means any Person that, at the time it enters into a Cash
Management Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such
Cash Management Agreement.




          “CFC” means a Person that is a controlled foreign corporation under Section 957 of the
Code.




          “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any request or directive
(whether or not having the force of law) by any Governmental Authority required to be complied with
by any Lender.




          “Change of Control” means:





     (a) an event or series of events by which any “person” or “group” (as such terms are
used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any
employee benefit plan of such person or its subsidiaries, and any person or entity acting in
its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes
the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange
Act of 1934, directly or indirectly, of 35% or more of the equity securities of the Borrower
entitled to vote for members of the board of directors or equivalent governing body of the
Borrower on a fully-diluted basis; or




     (b) during any period of 12 consecutive months, a majority of the members of the board
of directors or other equivalent governing body of the Borrower cease to be composed of
individuals (i) who were members of that board or equivalent governing body on the first day
of such period, (ii) whose election or nomination to that board or equivalent governing body
was approved by individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing body or
(iii) whose election or nomination to that board or other equivalent governing body was
approved by individuals referred to in clauses (i) and (ii) above constituting at the time
of such election or nomination at least a majority of that board or equivalent governing
body (excluding, in the case of both clause (ii) and clause (iii), any individual whose
initial nomination for, or assumption of office as, a member of that board or equivalent
governing body occurs as a result of an actual or threatened solicitation of proxies or
consents for the election or removal of one or more directors by any person or group other
than a solicitation for the election of one or more directors by or on behalf of the board
of directors).



          “Citigroup” means Citigroup Global Markets Inc. and its successors.




          “Citigroup Fee Letter” means the letter agreement, dated May 5, 2010, between the
Borrower and Citigroup.




          “Coal Act” means the Coal Industry Retiree Health Benefit Act of 1992, 26 U.S.C. §§
9701, et seq., as amended.





7









 








          “Coal Supply Agreements” means each agreement entered into by Patriot Coal Sales LLC
and certain affiliates of Peabody in the form of the Master Coal Supply Agreement, attached as
Exhibit J-3 to the Separation Agreement (to the extent such agreements remain in effect).




          “Coal Supply Agreement I” means the Coal Supply Agreement I, dated as of October 22,
2007, between COALSALES II, LLC and Patriot Coal Sales LLC.




          “Coal Supply Agreement II” means the Coal Supply Agreement II, dated as of October 22,
2007, between COALSALES II, LLC and Patriot Coal Sales LLC.




          “Code” means the Internal Revenue Code of 1986.




          “Collateral” means all of the “Collateral” and “Mortgaged Property”
referred to in the Collateral Documents and all of the other property that is under the terms of
the Collateral Documents, subject to Liens in favor of the Administrative Agent for the benefit of
the Secured Parties as security for the Obligations.




          “Collateral Documents” means, collectively, the Security Agreement, the Intellectual
Property Security Agreements, the Mortgages, each of the mortgages, collateral assignments,
security agreements, pledge agreements or other similar agreements delivered to the Administrative
Agent pursuant to Section 6.12, and each of the other agreements, instruments or documents
that creates or purports to create a Lien in favor of the Administrative Agent for the benefit of
the Secured Parties as security for the Obligations.




          “Commitment” means, as to each Lender, its obligation to (a) make Revolving Credit
Loans to the Borrower pursuant to Section 2.01, (b) purchase participations in L/C
Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount
at any one time outstanding not to exceed the amount set forth under the caption “Commitment”
opposite such Lender’s name on Schedule 1 to the Lender Addendum delivered by such Lender, or, as
the case may be, opposite such caption in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in
accordance with this Agreement. The aggregate amount of the Commitments as of the Restatement Date
is $427,500,000. For the avoidance of doubt, upon the Restatement Date, the Commitments of the
Lenders under the Original Credit Agreement shall be adjusted and reallocated as reflected in the
Lender Addenda delivered by the Lenders as of the Restatement Date with aggregate Commitments as of
the Restatement Date of $427,500,000.




          “Compliance Certificate” means a certificate substantially in the form of Exhibit
D.




          “Consent of Guarantors” has the meaning specified in Section 4.01(a)(xiii).




          “Consolidated Cash Interest Charges” means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, the sum of (a) all interest expense and letter of credit fees
and commissions of the Borrower and its Subsidiaries in connection with borrowed money or other
extensions of credit, in each case to the extent treated as interest in accordance with GAAP and
payable in cash.





8









 








          “Consolidated EBITDA” means, as of the last day of any period, Consolidated Net Income
for such period (excluding, without duplication, (a) Federal, state, local and foreign income tax
expense or benefit for such period, (b) noncash compensation expenses related to common stock and
other equity securities issued to employees, (c) extraordinary or non-recurring gains and losses in
accordance with GAAP, (d) gains or losses on discontinued operations and (e) any FASB ASC 360-10
writedowns, in each case for such period, plus (i) consolidated interest expense,
determined in accordance with GAAP, plus (ii) any minority interests share of income and
losses for such period, plus (iii) to the extent deducted in computing such Consolidated
Net Income, the sum of all income taxes, depreciation, depletion and amortization of property,
plant, equipment and intangibles, plus (iv) any debt extinguishment costs, plus (v)
non-cash charges including non-cash charges due to cumulative effects of changes in accounting
principles (but excluding any such charge which requires an accrual of, or a cash reserve for,
anticipated cash charges for any future period), plus (vi) reclamation and remediation
obligation expenses less reclamation and remediation obligations cash payments (it being understood
that reclamation and remediation obligation expenses may not be added back under any other clause
in this definition), plus (vii) cash proceeds of asset sales or principal repayments in
cash of notes receivables related to asset sales, so long as such cash proceeds and cash repayments
in the aggregate do not exceed 20% of Consolidated EBITDA in any reporting period, plus
(viii) cash received from any non-wholly owned subsidiary or joint venture, plus (ix)
transaction costs, fees and expenses incurred during such period in connection with any acquisition
not prohibited hereunder or any issuance of debt or equity securities by the Borrower or any of its
Subsidiaries, in each case for such period, plus (x) negative sales or purchase contract
accretion, minus (xi) gains and losses on asset sales, minus (xii) Consolidated
EBITDA of any non-wholly owned subsidiary, and equity earnings and losses from joint ventures,
minus(xiii) cash dividends made to any minority interest holder, minus (xiv)
positive sales or purchase contract accretion. For the avoidance of doubt, for any period, to the
extent that Consolidated Net Income has been increased for such period due to any sales or purchase
contract accretion, the amount of such increase shall be subtracted from Consolidated Net Income
(and not added back) in calculating Consolidated EBITDA for such period.




          “Consolidated Funded Indebtedness” means, as of any date of determination, for the
Borrower and its Subsidiaries on a consolidated basis, the sum of (a) the outstanding principal
amount of all obligations, whether current or long-term, for borrowed money (including Obligations
hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (b) all direct obligations arising under standby letters of credit (other than
with respect to Designated Letters of Credit) and similar instruments, (c) all obligations in
respect of the deferred purchase price of property or services (other than (i) trade accounts
payable in the ordinary course of business and (ii) obligations under coal leases which may be
terminated at the discretion of the lessee), (d) Attributable Indebtedness in respect of Capital
Lease Obligations, (e) without duplication, all Guarantees with respect to outstanding Indebtedness
of the types specified in clauses (a) through (d) above of Persons other than the
Borrower or any Subsidiary, (f) amounts due under Permitted Securitization Programs (whether
or not on the balance sheet of the Borrower or its Subsidiaries) and (g) the Swap Termination Value
that (i) with respect to clause (a) of that definition, is due and payable by the Borrower and its
Subsidiaries under any Swap Contract that has been closed out and (ii) with respect to clause (b)
of that definition would be payable by the Borrower and its Subsidiaries with respect to an early
termination of any outstanding Secured Hedge Agreement, provided, however, that for
the


9









 







purpose of calculating the Swap Termination Value for this clause (ii) the Swap Termination
Value shall only take into account the effect of any valid netting agreement relating to Secured
Hedge Agreements.




          “Consolidated Interest Coverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated EBITDA for the period of the four prior consecutive fiscal quarters
ending as of the date of the financial statements most recently delivered by the Borrower pursuant
to Section 6.01(a) or (b), as applicable, to (b) Consolidated Cash Interest Charges
for such period.




          “Consolidated Net Income” means, for any period, for the Borrower and its Subsidiaries
on a consolidated basis, the net income of the Borrower and its Subsidiaries for that period,
determined in accordance with GAAP.




          “Consolidated Net Leverage Ratio” means, as of any date of determination, the ratio of
(a) Consolidated Funded Indebtedness less the sum of all Unrestricted Cash, Cash
Equivalents and short-term marketable debt securities of any Loan Party that in the aggregate
exceed $25,000,000 as of the date of the financial statements most recently delivered by the
Borrower pursuant to Section 6.01(a) or (b), as applicable, to (b) Consolidated
EBITDA for the period of the four consecutive fiscal quarters ending as of the date of such
financial statements.




          “Contractual Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which such Person is a party
or by which it or any of its property is bound.




          “Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.




          “Convertible Notes” means the convertible notes of the Borrower issued pursuant to the
Convertible Notes Indenture as in effect on the Restatement Date in an aggregate principal amount
not to exceed $200,000,000.




          “Convertible Notes Indenture” means the Indenture, dated as of May 28, 2008, among the
Borrower, the subsidiaries party thereto and U.S. Bank National Association, as trustee.




          “Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit
Extension.




          “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.





10









 








          “Default” means any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of time, or both, would be an Event of Default.




          “Default Rate” means (a) when used with respect to Obligations other than Letter of
Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if
any, applicable to Base Rate Loans plus (iii) 2% per annum; provided,
however, that with respect to a Eurocurrency Rate Loan, the Default Rate shall be an
interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to
such Loan plus 2% per annum and (b) when used with respect to Letter of Credit Fees, a rate
equal to the Applicable Rate plus 2% per annum.




          “Defaulting Lender” means any Lender that (a) has failed to fund any portion of the
Revolving Credit Loans, participations in L/C Obligations or participations in Swing Line Loans
required to be funded by it hereunder within one Business Day of the date required to be funded by
it hereunder, (b) has otherwise failed to pay over to the Administrative Agent or any other Lender
any other amount required to be paid by it hereunder within one Business Day of the date when due,
unless the subject of a good faith dispute, or (c) has become the subject of a bankruptcy or
insolvency proceeding.




          “Designated Letters of Credit” means letters of credit issued with respect to mine
reclamation, workers’ compensation and other employee benefit liabilities.




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




          “Dollar” and “$” mean lawful money of the United States.




          “Domestic Subsidiary” means any Subsidiary of the Borrower that is organized under the
laws of any political subdivision of the United States or the District of Columbia.




          “Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved
Fund; and (d) any other Person (other than a natural person) approved by (i) except in the case of
an assignee of any Loan held by any Arranger or any of its Affiliates, the Administrative Agent,
(ii) unless an Event of Default has occurred and is continuing, the Borrower (each such approval
not to be unreasonably withheld or delayed), (iii) the L/C Issuer and (iv) the Swing Line Lender;
provided, that notwithstanding the foregoing, “Eligible Assignee” shall not include the
Borrower or any of the Borrower’s Affiliates or Subsidiaries or any natural person.




          “Environment” means ambient and indoor air, surface water and groundwater (including
potable water, navigable water and wetlands), the land surface or subsurface strata or sediment,
natural resources such as flora or fauna or as otherwise defined in any Environmental Law.




          “Environmental Laws” means any and all current and future federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,


11









 







concessions,
grants, franchises, agreements or other governmental restrictions or common law causes of action
applicable to the Borrower’s properties and operations relating to (a) protection of the
environment or to emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous materials, substances or wastes into the
environment including ambient air, surface water, ground water, or land, (b) SMCRA, (c) MSHA, (d)
human health as affected by hazardous or toxic substances, (e) acid mine drainage and (f) mining
operations and activities to the extent relating to environmental protection or reclamation;
provided, that “Environmental Laws” do not include any laws relating to worker or retiree
benefits, including benefits arising out of occupational diseases.




          “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly
resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure
to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into
the Environment, (e) Reclamation or (f) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the foregoing.




          “Environmental Permits” means any and all permits, licenses, registrations,
certifications, notifications, exemptions and any other authorization required under any applicable
Environmental Law (including, without limitation, those necessary under any applicable
Environmental Laws for the construction, maintenance and operation of any coal mine or related
processing facilities or Reclamation).




          “Equity Interests” means, with respect to any Person, all of the shares of capital
stock of (or other ownership or profit interests in) such Person, all of the warrants, options or
other rights for the purchase or acquisition from such Person of shares of capital stock of (or
other ownership or profit interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person
or warrants, rights or options for the purchase or acquisition from such Person of such shares (or
such other interests), and all of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting, and whether or not
such shares, warrants, options, rights or other interests are outstanding on any date of
determination.




          “ERISA” means the Employee Retirement Income Security Act of 1974.




          “ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the
Code).




          “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in


12









 







Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Plan amendment as a termination under
Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.




          “Eurocurrency Rate” means:




          (i) for any Interest Period with respect to a Eurocurrency Rate Loan, the rate per annum equal
to (i) the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters
(or such other commercially available source providing quotations of BBA LIBOR as may be designated
by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two London
Banking Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery
on the first day of such Interest Period) with a term equivalent to such Interest Period or, (ii)
if such rate is not available at such time for any reason, the rate per annum determined by the
Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of
such Interest Period in same day funds in the approximate amount of the Eurocurrency Rate Loan
being made, continued or converted and with a term equivalent to such Interest Period would be
offered by Bank of America’s London Branch to major banks in the London interbank eurodollar market
at their request at approximately 11:00 a.m. (London time) two London Banking Days prior to the
commencement of such Interest Period; and




          (ii) for any interest calculation with respect to a Base Rate Loan on any date, the rate per
annum equal to (i) BBA LIBOR, at approximately 11:00 a.m., London time determined two London
Banking Days prior to such date for Dollar deposits being delivered in the London interbank market
for a term of one month commencing that day or (ii) if such published rate is not available at such
time for any reason, the rate per annum determined by the Administrative Agent to be the rate at
which deposits in Dollars for delivery on the date of determination in same day funds in the
approximate amount of the Base Rate Loan being made or maintained and with a term equal to one
month would be offered by Bank of America’s London Branch to major banks in the London interbank
Eurodollar market at their request at the date and time of determination.




          “Eurocurrency Rate Loan” means a Revolving Credit Loan that bears interest at a rate
based on the Eurocurrency Rate.




          “Event of Default” has the meaning specified in Section 8.01.




          “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, (a) branch profits taxes or taxes imposed on or measured


13









 







 by its overall net
income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), as a
result of a present or former connection between the Administrative Agent, such Lender or such L/C
Issuer (or such other recipient) and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or therein (other than any such
connection arising solely from the Administrative Agent, such Lender, or such L/C Issuer (or such
other recipient) having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any Loan Document), (b) in the case of a Foreign Lender
(other than an assignee pursuant to a request by the Borrower under Section 10.13), any
United States withholding tax that is imposed on amounts payable to such Foreign Lender at the time
such Foreign Lender becomes a party hereto (or designates a new Lending Office) or any tax that is
attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in
Law after the date such Foreign Lender becomes a party hereto) to comply with Section
3.01(e); except to the extent that such Foreign Lender (or its assignor, if any) was entitled,
at the time of the designation of a new Lending Office (or assignment) to receive additional
amounts from Borrower with respect to such withholding tax pursuant to Section 3.01(a) or
(c) any United States withholding tax that is imposed as a result of such Lender’s failure
to comply with the requirements of Sections 1471 through 1474 of the Code and any regulations
promulgated thereunder (“FATCA”) to establish an exemption from withholding thereunder.




          “Existing Letters of Credit” means the letters of credit outstanding on the
Restatement Date and set forth on Schedule 1.01(b).




          “Extraordinary Receipt” means any cash received by the Borrower or any of its
Subsidiaries as proceeds of insurance (other than proceeds of business interruption insurance to
the extent such proceeds constitute compensation for lost earnings) or condemnation awards (and
payments in lieu thereof).




          “Facility” means, at any time, the aggregate amount of the Lenders’ Commitments at
such time.




          “Fair Market Value” means, as of any date of determination, the value that would be
attributed to the Securitization Assets by an independent and unaffiliated third party purchasing
the Securitization Assets in an arms-length sale transaction as of such date, as determined in good
faith by the Borrower.




          “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding such day;
provided, that (a) if such day is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day as so published on the
next succeeding Business Day, and (b) if no such rate is so published on such next succeeding
Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if
necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such
transactions as determined by the Administrative Agent.






14









 








          “Fee Letters” means, collectively, the Bank of America Fee Letter, the Citigroup Fee
Letter and the PNC Fee Letter.




          “Financing Lease” means any lease of property, real or personal, the obligations of
the lessee in respect of which are required in accordance with GAAP to be capitalized on a balance
sheet of the lessee.




          “Foreign Lender” means, with respect to the Borrower, any Lender that is organized
under the laws of a jurisdiction other than the United States, any state thereof or the District of
Columbia.




          “Foreign Subsidiary” means a Subsidiary that is organized under the laws of a
jurisdiction other than the United States or any state thereof or the District of Columbia and any
Subsidiary thereof.




          “FRB” means the Board of Governors of the Federal Reserve System of the United States.




          “Fund” means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business.




          “GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board, that are applicable to the circumstances as of the date of determination.




          “Governmental Authority” means the government of the United States or any other
nation, or any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank).




          “Guarantee” means, as to any Person (the “guaranteeing person”), any obligation of (a)
the guaranteeing person or (b) another Person (including, without limitation, any bank under any
letter of credit) to the extent the guaranteeing person has issued a reimbursement,
counterindemnity or similar obligation in order to induce the creation of such obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other
obligations (the “primary obligations”) of any other third Person (the “primary obligor”) in
any manner, whether directly or indirectly, including, without limitation, reimbursement
obligations under letters of credit and any obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any
such primary obligation or (2) to maintain working capital or equity capital of the primary obligor
or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of assuring the owner of any such
primary obligation of the


15









 







ability of the primary obligor to make payment of such primary obligation
or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss
in respect thereof; provided, however, that the term Guarantee shall not include
(i) indemnification or reimbursement obligations under or in respect of Surety Bonds or Designated
Letters of Credit, (ii) ordinary course performance guarantees by any Loan Party of the obligations
(other than for the payment of borrowed money) of any other Loan Party and (iii) endorsements of
instruments for deposit or collection in the ordinary course of business. The amount of any
Guarantee obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount
equal to the stated or determinable amount of the primary obligation in respect of which such
Guarantee obligation is made and (b) the maximum amount for which such guaranteeing person may be
liable pursuant to the terms of the instrument embodying such Guarantee obligation, unless such
primary obligation and the maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee obligation shall be such
guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by
the Borrower in good faith. The term “Guarantee” as a verb has a corresponding meaning.




          “Guarantor Subsidiary” means any Subsidiary of the Borrower that is (a) a Domestic
Subsidiary and (b) a Foreign Subsidiary, in the case of clause (b) to the extent the Borrower
determines in good faith and in its reasonable discretion that no material adverse tax
consequences would result; provided, that such term shall not include (i)) (A) any
Securitization Subsidiary or (B) EACC Camps Inc., a West Virginia corporation, so long as
Section 5.25 continues to be true and correct in all respects or (ii) any Subsidiary not
wholly-owned, directly or indirectly, by the Borrower to the extent (but only so long as) it is
prohibited by the terms of any Contractual Obligation (including pursuant to any Organization
Documents of such Subsidiary) from guaranteeing the Obligations or any other obligations or
liabilities guaranteed pursuant to the terms of the Subsidiary Guaranty (it being understood that,
for purposes of this definition, the terms of any Contractual Obligation shall be deemed to
prohibit such Guarantee if it would constitute a breach or default under or result in the
termination of or require the consent of any Person (other than the Borrower or any of its
Subsidiaries, or the Administrative Agent or the Lenders in their respective capacities as such)
under the security, agreement, instrument or other undertaking giving rise to such Contractual
Obligation); provided further, that such Contractual Obligation is or was not
created in contemplation of this definition.




          “Hazardous Materials” means (i) any explosive or radioactive substances or wastes and
(ii) any hazardous or toxic substances, materials or wastes, defined or regulated as such in or
under, or that could reasonably be expected to give rise to liability under, any applicable
Environmental Law, including, without limitation, asbestos, polychlorinated biphenyls,
urea-formaldehyde insulation, gasoline or petroleum (including crude oil or any
fraction thereof) or petroleum products or any coal ash, coal combustion by-products or waste,
boiler slag, scrubber residue or flue desulphurization residue.




          “Hedge Bank” means any Person that, at the time it enters into a Secured Hedge
Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Secured
Hedge Agreement.




          “Honor Date” shall have the meaning specified in Section 2.03(c)(i).





16









 








          “Indebtedness” means, as to any Person at a particular time, without duplication, all
of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:





     (a) all obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;




     (b) all obligations of such Person arising under letters of credit (including standby
and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments
issued for the account of such Person;




     (c) net obligations of such Person under any Swap Contract;




     (d) all obligations of such Person to pay the deferred purchase price of property or
services (other than current trade liabilities incurred in the ordinary course of business
and payable in accordance with customary practices and accrued expenses incurred in the
ordinary course of business);




     (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property
owned or being purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse;




     (f) Capital Lease Obligations; and




     (g) all Guarantees of such Person in respect of any of the foregoing Indebtedness of
any other Person.



          For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a joint venturer, to the extent
such person is liable therefor as a result of such Person’s ownership interest in such entity or
otherwise, except (other than in the case of general partner liability) to the extent that the
terms of such Indebtedness expressly provide that such person is not liable therefor. The amount
of any net obligation under any Swap Contract on any date shall be deemed to be the Swap
Termination Value thereof as of such date. The amount of any Capital Lease Obligation as of any
date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such
date.




          “Indemnified Taxes” means Taxes other than Excluded Taxes.




          “Indemnitees” has the meaning specified in Section 10.04(b).




          “Information” has the meaning specified in Section 10.07.





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          “Intellectual Property Security Agreements” means the Copyright Security Agreement,
the Patent Security Agreement and the Trademark Security Agreement, each as defined under the
Security Agreement.




          “Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan or a BBA
LIBOR Daily Floating Rate Loan, the last day of each Interest Period applicable to such Loan and
the Maturity Date (or, if sooner, the date on which the Obligations become due and payable pursuant
to Section 8.02); provided, however, that if any Interest Period for a
Eurocurrency Rate Loan exceeds three months, the respective dates that fall every three months
after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any
Base Rate Loan and any BBA LIBOR Daily Floating Rate Loan, the last Business Day of each March,
June, September and December and the Maturity Date.




          “Interest Period” means, as to each Eurocurrency Rate Loan, the period commencing on
the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency
Rate Loan and ending on the date one, two, three or six months or, to the extent available to all
Lenders making such Eurocurrency Rate Loans, nine or twelve months thereafter, as selected by the
Borrower in its Borrowing Notice; provided, that:





     (a) any Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day falls in
another calendar month, in which case such Interest Period shall end on the next preceding
Business Day;




     (b) any Interest Period that begins on the last Business Day of a calendar month (or on
a day for which there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of the calendar month at the end
of such Interest Period; and




     (c) no Interest Period shall extend beyond the Maturity Date.



          “Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of Capital Stock or other
securities of another Person, (b) a loan, advance (excluding intercompany liabilities incurred in
the ordinary course of business in connection with the cash management operations of the Borrower
and its Subsidiaries) or capital contribution to, Guarantee or assumption of debt of, or purchase
or other acquisition of any other debt or equity participation or interest in, another Person,
including any partnership or joint venture interest in such other Person, or (c) the purchase or
other acquisition (in one transaction or a series of transactions) of assets of another Person that
constitute a business unit. For purposes of covenant compliance, the amount of any Investment
shall be (i) the amount actually invested, as determined immediately prior to the time of each such
Investment, without adjustment for subsequent
increases or decreases in the value of such Investment minus (ii) the amount of
dividends or distributions received in connection with such Investment and any return of capital
and any payment of principal received in respect of such Investment that in each case is received
in cash, Cash Equivalents or short-term marketable debt securities.





18









 








          “Investment Grade Rating” shall mean a rating equal to or higher than Baa3 (or
equivalent) by Moody’s and BBB- (or equivalent) by S&P, or an equivalent rating by any other
nationally recognized statistical rating agency selected by the Borrower and reasonably acceptable
to the Administrative Agent.




          “IP Rights” has the meaning specified in Section 5.18.




          “IRS” means the United States Internal Revenue Service.




          “ISP” means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such
later version thereof as may be in effect at the time of issuance).




          “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit
Application, and any other document, agreement and instrument entered into by the L/C Issuer and
the Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to any such Letter of
Credit.




          “Joint Venture” means any Person (other than a Subsidiary) in which the Borrower and
its Subsidiaries collectively hold an ownership interest.




          “Laws” means, as to any Person, collectively, all international, foreign, Federal,
state and local statutes, treaties, rules, regulations, ordinances, codes, and determinations of
arbitrators or courts or other Governmental Authorities, in each case applicable to or binding upon
such Person or any of its property or to which such Person or any of its property is subject.




          “L/C Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any L/C Borrowing in accordance with its Applicable Percentage.




          “L/C Borrowing” means an extension of credit resulting from a drawing under any Letter
of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Credit
Borrowing.




          “L/C Credit Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount thereof.




          “L/C Issuer” means Bank of America in its capacity as issuer of Letters of Credit
hereunder, and such other Lender or Lenders that agree to act as L/C Issuer at the request of the
Borrower, and any successor issuer of Letters of Credit hereunder.




          “L/C Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount
available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be
determined in accordance with Section 1.06. For all purposes of this Agreement, if on any
date of determination a Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be “outstanding” in the amount so remaining available to be drawn.





19









 








          “Lender” has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the Swing Line Lender.




          “Lender Addendum” means, with respect to any initial Lender, a Lender Addendum,
substantially in the form of Exhibit J, to be executed and delivered by such Lender on the
Restatement Date as provided in Section 10.16.




          “Lending Office” means, as to any Lender, the office or offices of such Lender
described as such in such Lender’s Administrative Questionnaire, or such other office or offices as
a Lender may from time to time notify the Borrower and the Administrative Agent.




          “Letter of Credit” means any letter of credit issued hereunder and shall include the
Existing Letters of Credit.




          “Letter of Credit Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by any L/C Issuer.




          “Letter of Credit Expiration Date” means the day that is seven days prior to the
Maturity Date (or, if such day is not a Business Day, the next preceding Business Day).




          “Letter of Credit Fee” has the meaning specified in Section 2.03(i).




          “Liability Assumption Agreements” means (a) the Coal Act Liability Assumption
Agreement, dated as of October 22, 2007, among the Borrower, Peabody Holding Company, LLC and
Peabody, (b) the NBCWA Liability Assumption Agreement, dated as of October 22, 2007, among the
Borrower, Peabody Holding Company, LLC, Peabody Coal Company, LLC and Peabody, and (c) the Salaried
Employee Liability Assumption Agreement, dated as of October 22, 2007, among the Borrower, Peabody
Holding Company, LLC, Peabody Coal Company, LLC and Peabody.




          “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or
other encumbrance on title to real property, and any Financing Lease having substantially the same
economic effect as any of the foregoing).




          “Loan” means an extension of credit by a Lender to the Borrower under Article
II in the form of a Revolving Credit Loan or a Swing Line Loan.




          “Loan Documents” means, collectively, (a) this Agreement, (b) the Notes, (c) the
Subsidiary Guaranty, (d) the Collateral Documents, (e) each Issuer Document, (f) each Secured Hedge
Agreement, and (g) each Secured Cash Management Agreement.




          “Loan Parties” means, collectively, the Borrower and each Subsidiary Guarantor.





20









 








          “London Banking Day” means any day on which dealings in Dollar deposits are conducted
by and between banks in the London interbank eurodollar market.




          “Material Adverse Effect” means a material adverse effect upon (a) the business,
assets, operations, property or condition (financial or otherwise) of the Borrower and its
Subsidiaries taken as a whole or (b) the validity or enforceability of this or any of the other
Loan Documents or the rights or remedies of the Administrative Agent or the Lenders hereunder or
thereunder.




          “Material Leased Real Property” means real property leased by any Loan Party having a
fair market value reasonably estimated by the Borrower to be in excess of $4,000,000.




          “Material Owned Real Property” means real property owned by any Loan Party having a
fair market value reasonably estimated by the Borrower to be in excess of $2,500,000.




          “Maturity Date” means the earlier of (i) December 31, 2013 and (ii) to the extent that
the Convertible Notes are not converted in full into common Equity Interests of the Borrower on or
prior to January 31, 2013 (or cash or Cash Equivalents are not placed irrevocably into an escrow,
deposit or securities account on or prior to such date in an amount sufficient to pay, on the
maturity date thereof, all principal and unpaid interest outstanding in respect of such Convertible
Notes (such escrow, deposit or securities account, the arrangements and documentation with respect
thereto, and the escrow, deposit or securities agent with respect thereto, to be reasonably
satisfactory to the Administrative Agent), the 90th day prior to the maturity of such
Convertible Notes (or any replacement indebtedness in respect thereof); provided,
however, that, in each case, if such date is not a Business Day, the Maturity Date shall be
the immediately preceding Business Day.




          “Mining Financial Assurances” has the meaning specified in Section 5.10(a).




          “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.




          “Mortgage” means thedeeds of trust, trust deeds, deeds to secure debt,
mortgages, leasehold mortgages and leasehold deeds of trust in substantially the form of
Exhibit G (with such changes as may be satisfactory to the Administrative Agent and its
counsel to account for local law matters) entered into in connection with the Original Credit
Agreement and covering the properties listed on Schedule 4.01(a) (together with the
Assignments of Leases and Rents referred to therein and each other mortgage delivered pursuant to
Section 6.12, in each case as amended, restated, supplemented or otherwise modified from
time to time.




          “Mortgage Modification” has the meaning specified in Schedule 6.21.




          “MSHA” means the Mining Safety and Health Act of 1977, 30 U.S.C. §§ 801 et seq., as
amended.




          “Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made or been obligated to make
contributions.





21









 








          “Net Cash Proceeds” means:





     (a) with respect to any Disposition by the Borrower or any of its Subsidiaries, or any
Extraordinary Receipt received or paid to the account of the Borrower or any of its
Subsidiaries, the excess, if any, of (i) the sum of cash and Cash Equivalents received in
connection with such transaction (including any cash or Cash Equivalents received by way of
deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but
only as and when so received) over (ii) the sum of (A) the principal amount of any
Indebtedness that is secured by the applicable asset and that is required to be repaid in
connection with such transaction (other than Indebtedness under the Loan Documents), (B) the
reasonable and customary out-of-pocket expenses incurred by the Borrower or such Subsidiary
in connection with such transaction and (C) income taxes reasonably estimated to be actually
payable within two years of the date of the relevant transaction as a result of any gain
recognized in connection therewith; provided, that if the amount of any estimated
taxes pursuant to subclause (C) exceeds the amount of taxes actually required to be paid in
cash in respect of such Disposition, the aggregate amount of such excess shall constitute
Net Cash Proceeds; and




     (b) with respect to the incurrence or issuance of any Indebtedness by the Borrower or
any of its Subsidiaries, the excess of (i) the sum of the cash and Cash Equivalents received
in connection with such transaction over (ii) the underwriting discounts and commissions,
and other reasonable and customary out-of-pocket expenses, incurred by the Borrower or such
Subsidiary in connection therewith.



          “Note” means a promissory note made by the Borrower in favor of a Lender evidencing
Revolving Credit Loans or Swing Line Loans, as the case may be, made by such Lender, substantially
in the form of Exhibit C.




          “Obligations” means all advances to, and debts, liabilities and obligations of, any
Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of
Credit, whether direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and including interest and fees
that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such proceeding.




          “Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability
company, the certificate or articles of formation or organization and operating agreement; and
(c) with respect to any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or organization and any
agreement, instrument, filing or notice with respect thereto filed in connection with its formation
or organization with the applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or organization of such
entity.





22









 








          “Original Closing Date” means October 31, 2007.




          “Original Credit Agreement” has the meaning specified in the Preliminary Statements.




          “Other Taxes” means all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies (and interest, fines, penalties and additions
related thereto) arising from any payment made hereunder or under any other Loan Document or from
the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.




          “Outstanding Amount” means (i) with respect to Revolving Credit Loans on any date, the
aggregate outstanding principal amount thereof after giving effect to any borrowings and
prepayments or repayments of Revolving Credit Loans and Swing Line Loans, as the case may be,
occurring on such date; (ii) with respect to Swing Line Loans on any date, the aggregate
outstanding principal amount thereof after giving effect to any borrowings and prepayments of such
Swing Line Loans occurring on such date; and (iii) with respect to any L/C Obligations on any date,
the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension
occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of
such date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts.




          “Overnight Rate” means, for any day, the greater of (a) the Federal Funds Rate and (b)
an overnight rate determined by the Administrative Agent, the L/C Issuer, or the Swing Line Lender,
as the case may be, in accordance with banking industry rules on interbank compensation.




          “Participant” has the meaning specified in Section 10.06(d).




          “PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle
A of Title IV of ERISA, or any successor thereto.




          “Peabody” means Peabody Energy Corporation, a Delaware corporation.




          “Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any
ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time
during the immediately preceding five plan years.




          “Permitted Acquisition” shall mean the acquisition by the Borrower or any Subsidiary
of all or substantially all the assets of a Person or line of business of such person (referred to
herein as the “Acquired Assets”), or all of the Equity Interests of a Person (referred to
herein as the “Acquired Entity”); provided, that (i) such acquisition was not
preceded by an unsolicited tender offer for such Equity Interests by, or proxy contest initiated by
the Borrower or any Subsidiary; (ii) the Acquired Entity or the Acquired Assets, as applicable,
shall be engaged in a Similar Business as conducted during the current and most recently concluded


23









 







calendar year; (iii) at the time of such transaction (A) both before and after giving effect
thereto, no Event of Default or Default shall have occurred and be continuing; (B) the Borrower
would be in compliance with the covenants set forth in Section 7.11 as of the most recently
completed period ending prior to such transaction for which the financial statements and
certificates required by Sections 6.01(a) or (b) were required to be delivered,
after giving pro forma effect to such transaction and to any other event occurring after
such period as to which pro forma recalculation is appropriate (including any other
transaction described in this definition occurring after such period) as if such transaction (and
the occurrence or assumption of any Indebtedness in connection therewith) had occurred as of the
first day of such period; (C) after giving effect to such acquisition, the aggregate of unused and
available Commitments plus the amount of other free and unencumbered cash and Cash
Equivalents available to the Borrower shall be at least equal to $50,000,000; and (D) the aggregate
of the cash consideration paid (excluding cash consideration paid with the proceeds of equity
issuances after the Original Closing Date) in connection with such acquisition and any related
acquisitions pursuant to this definition (including any Indebtedness of the Acquired Entity that is
assumed by the Borrower or any Subsidiary in connection with such acquisition) shall not exceed (x)
if the Consolidated Net Leverage Ratio after giving effect to such acquisition is equal to or
greater than 2.50:1.00, $250,000,000 in any fiscal year or (y) if the Consolidated Net Leverage
Ratio after giving effect to such acquisition is less than 2.50:1.00, $500,000,000 in any fiscal
year; (iv) the Borrower and the Subsidiaries shall not incur or assume any Indebtedness in
connection with such acquisition, except as permitted by Section 7.02; (v) the Borrower
shall comply, and shall cause the Acquired Entity, if any, to comply, with the applicable
provisions of Section 6.12 and Section 7.3 of the Security Agreement; and (vi) at
least 5 Business Days prior to the proposed date of consummation of the transaction, the Borrower
shall deliver to the Administrative Agent (A) an officer’s certificate certifying that such
transaction complies with this definition (which shall have attached thereto reasonably detailed
backup data and calculations showing such compliance) and (B) all such other information and data
relating to the transaction or the Person or business to be acquired as may be reasonably requested
by the Administrative Agent.




          “Permitted Securitization Program” means any receivables securitization program
pursuant to which the Borrower or any of its Subsidiaries sells accounts receivable and related
receivables; provided, that the aggregate principle amount of all asset-backed securities
issued pursuant to such receivables securitization programs shall not exceed $125,000,000 at any
time outstanding; provided further, that with respect to any Permitted
Securitization Program involving a Securitization Subsidiary, (i) such Permitted Securitization
Program must qualify as a “Securitization” hereunder, (ii) the Investment made by the Borrower or
any Subsidiary in such Securitization Subsidiary must be no greater than is customary for
transactions of this type of similar sizes and (iii) the Seller’s Retained Interest and all
proceeds thereof shall constitute Collateral hereunder and all necessary steps to perfect a
security interest in such Seller’s Retained Interest in the Collateral Agent are taken by the
Borrower or applicable Subsidiary.




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




          “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by the Borrower or, with respect to any such plan that is subject to Section 412
of the Code or Title IV of ERISA, by any ERISA Affiliate.






24









 








          “Platform” has the meaning specified in Section 6.02.




          “Pledged Debt” has the meaning specified in Section 1.1 of the Security
Agreement.




          “Pledged Equity Interests” has the meaning specified in Section 1.1 of the
Security Agreement.




          “PNC” means PNC Capital Markets LLC and its successors.




          “PNC Fee Letter” means the letter agreement, dated May 5, 2010, between the Borrower
and PNC.




          “Pro Forma Basis” means, for purposes of calculating the financial covenants set forth
in Section 7.11, that with respect to any acquisition or disposition described in Section
1.03(c), such acquisition or disposition shall be deemed to have occurred as of the first day of
the most recent four fiscal quarter period preceding the date of such acquisition or disposition
for which the Borrower has delivered financial statements pursuant to Section 6.01. In
connection with the foregoing, (a) with respect to any acquisition, income statement items
attributable to the Person or property or assets acquired of shall be included to the extent
relating to any period applicable in such calculations to the extent (i) such items are not
otherwise included in such income statement items for the Borrower and its Subsidiaries in
accordance with GAAP or in accordance with any defined terms set forth in Section 1.01,
(ii) such items are supported by financial statements or other information reasonably satisfactory
to the Administrative Agent and (iii) any Indebtedness incurred or assumed by the Borrower or any
Subsidiary (including the Person, property or assets acquired) in connection with such acquisition
and any Indebtedness of the Person, property or assets acquired which is not retired in connection
with such acquisition (A) shall be deemed to have been incurred as of the first day of the most
recent four fiscal quarter period preceding the date for such acquisition and (B) if such
Indebtedness has a floating or formula rate, shall have an implied rate of interest for the most
recent four fiscal quarter period preceding the date of such acquisition for purposes of this
definition determined by utilizing the rate which is or would be in effect with respect to such
Indebtedness as at the relevant date of determination; and (b) with respect to any disposition,
income statement items attributable to the Person or property or assets being disposed of shall be
excluded to the extent relating to any period applicable in such calculations in accordance with
the foregoing principles applicable to acquisitions, mutatis mutandis.




          “Production Payments” means with respect to any Person, all production payment
obligations and other similar obligations with respect to coal and other natural resources of such
Person that are recorded as a liability or deferred revenue on the financial statements of such
Person in accordance with GAAP.




          “Properties” has the meaning specified in Section 5.09(a).




          “Public Lender” has the meaning specified in Section 6.02.




          “Reclamation” means the reclamation and restoration of land, water and any future,
current, abandoned or former mines, and of any other Environment affected by such


25









 







mines, as
required pursuant to SMCRA, any other Environmental Law or any Environmental Permit.




          “Refinancing Indebtedness” has the meaning specified in Section 7.02(c).




          “Register” has the meaning specified in Section 10.06(c).




          “Related Documents” means the Separation Agreement, the Tax Separation Agreement, the
Coal Supply Agreement I, the Coal Supply Agreement II, the Coal Supply Agreements and the Liability
Assumption Agreements.




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




          “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA,
other than events for which the 30 day notice period has been waived.




          “Request for Credit Extension” means (a) with respect to a Borrowing, conversion or
continuation of Revolving Credit Loans, a Borrowing Notice, (b) with respect to an L/C Credit
Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line
Loan Notice.




          “Required Lenders” means, as of any date of determination, Lenders holding more than
50% of the sum of the (a) Total Outstandings (with the aggregate amount of each Lender’s risk
participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held”
by such Lender for purposes of this definition) and (b) aggregate unused Commitments;
provided, that the unused Commitment of, and the portion of the Total Outstandings held or
deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of
Required Lenders.




          “Requirement of Law” means as to any Person, the Organizational Documents of such
Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or
other Governmental Authority, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject.




          “Responsible Officer” means the chief executive officer, president, or any vice
president of the Borrower or, with respect to financial matters, the chief financial officer or
treasurer of the Borrower.




          “Restatement Date” means the first date that all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 10.01.




          “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Capital Stock of the Borrower or any Subsidiary,
or any payment (whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or


26









 







termination of any such Capital Stock, or on account of any return of capital to the Borrower’s
stockholders, partners or members (or the equivalent Person thereof).




          “Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving
Credit Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest
Period made by each of the Lenders pursuant to Section 2.01.




          “Revolving Credit Loan” has the meaning specified in Section 2.01.




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




          “SEC” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.




          “Secured Cash Management Agreement” means any Cash Management Agreement that is
entered into by and between the Borrower and any Cash Management Bank.




          “Secured Hedge Agreement” means any Swap Contract permitted under Article VII
that is entered into by and between the Borrower and any Hedge Bank.




          “Secured Parties” means, collectively, the Administrative Agent, the Lenders, the L/C
Issuer, the Hedge Banks, the Cash Management Banks, and each co-agent or sub-agent appointed by the
Administrative Agent from time to time pursuant to Section 9.05.




          “Securitization” means any transaction or series of transactions entered into by the
Borrower or any of its Subsidiaries pursuant to which the Borrower or such Subsidiary, as the case
may be, sells, conveys, assigns, grants an interest in or otherwise transfers to a Securitization
Subsidiary, Securitization Assets (and/or grants a security interest in such Securitization Assets
transferred or purported to be transferred to such Securitization Subsidiary) without recourse
other than pursuant to Standard Securitization Undertakings, and which Securitization Subsidiary
finances the acquisition of such Securitization Assets with (i) cash, (ii) the issuance to the
Borrower of Seller’s Retained Interests or an increase in such Seller’s Retained Interests, or
(iii) proceeds from the sale or collection of Securitization Assets.




          “Securitization Assets” means any accounts receivable owed to the Borrower or any
Subsidiary (whether now existing or arising or acquired in the future) arising in the ordinary
course of business from the sale of goods or services, all collateral securing such accounts
receivable, all contracts and contract rights and all guarantees or other obligations in respect of
such accounts receivable or other receivables, all proceeds of such accounts receivable and other
assets (including contract rights) which are of the type customarily transferred or in respect of
which security interests are customarily granted in connection with securitizations of accounts
receivable and which are sold, transferred or otherwise conveyed by the Borrower or a Subsidiary to
a Securitization Subsidiary.




          “Securitization Subsidiary” means a wholly owned Subsidiary of the Borrower or any of
its Subsidiaries to which the Borrower or any of its Subsidiaries, sells, conveys, transfers or
grants a Lien in Securitization Assets, which wholly owned Subsidiary is formed for the


27









 







limited
purpose of effecting one or more Securitizations involving the Securitization Assets and related
activities.




          “Security Agreement” means that certain Pledge and Security agreement, dated as of
October 31, 2007, by and among the Administrative Agent and each of the Grantors (as defined
therein) party thereto, together with each other pledge and security agreement and pledge and
security agreement supplement delivered pursuant to Section 6.12, in each case as amended,
restated, supplemented or otherwise modified from time to time.




          “Seller’s Retained Interest” means the debt or equity interests held by the Borrower
or any of its Subsidiaries in a Securitization Subsidiary to which Securitization Assets have been
transferred, including any such debt or equity received as consideration for or as a portion of the
purchase price for the Securitization Assets transferred, or any other instrument through which the
Borrower or any of its Subsidiaries has rights to or receives distributions in respect of any
residual or excess interest in the Securitization Assets.




          “Senior Notes” means the senior notes of the Borrower issued pursuant to the Senior
Notes Indenture as in effect on the Restatement Date in an aggregate principal amount not to exceed
$300,000,000.




          “Senior Notes Indenture” means the Indenture, dated as of May 5, 2010 among the
Borrower, the subsidiaries party thereto and Wilmington Trust Company, as trustee.




          “Senior Notes Offering” means the issuance of the Senior Notes.




          “Separation Agreement” means the Separation Agreement, Plan of Reorganization and
Distribution, dated as of October 22, 2007, between Peabody and the Borrower.




          “Similar Business” means coal production, coal mining, coal gasification, coal
liqui-faction, other BTU conversions, coal brokering, coal transportation, mine development, coal
supply contract restructurings, ash disposal, environmental remediation, Reclamation, coal and coal
bed methane exploration, production, marketing, transportation and distribution and other related
businesses, and activities of the Borrower and its Subsidiaries as of the date hereof and any
business or activity that is reasonably similar thereto or a reasonable extension, development or
expansion thereof or ancillary thereto.




          “SMCRA” means the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. §§1201
et seq., as amended.




          “Solvent” and “Solvency” mean, with respect to any Person on any date of
determination, that on such date (a) the fair value of the property of such Person is greater than
the total amount of liabilities, including contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount that will be required
to pay the probable liability of such Person on its debts as they become absolute and matured, (c)
such
Person does not intend to, and does not believe that it will, incur debts or liabilities
beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is
not engaged in business or a transaction, and is not about to engage in business or a transaction,
for which such


28









 







Person’s property would constitute an unreasonably small capital, and (e) such
Person is able to pay its debts and liabilities, contingent obligations and other commitments as
they mature in the ordinary course of business. The amount of contingent liabilities at any time
shall be computed as the amount that, in the light of all the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an actual or matured
liability.




          “Spin-Off” means the transaction pursuant to which the Borrower became a separate
legal entity by way of distribution of the Borrower’s common shares to stockholders of Peabody.




          “Standard Securitization Undertakings” means representations, warranties, covenants,
repurchase obligations and indemnities entered into by the Borrower or any Subsidiary which are
customary for a seller or servicer of assets transferred in connection with a Securitization.




          “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other governing body (other
than securities or interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, directly, or indirectly through one or more intermediaries, or
both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary”
or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.




          “Subsidiary Guarantors” means, collectively, the subsidiaries of the Borrower listed
on Schedule 1.01(a), and each other Guarantor Subsidiary of the Borrower that guarantees
the Obligations pursuant to Section 6.12.




          “Subsidiary Guaranty” means the certain Guarantee made by the Subsidiary Guarantors in
favor of the Secured Parties, substantially in the form of Exhibit F, together with each
other guaranty and guaranty supplement delivered pursuant to Section 6.12.




          “Surety Bonds” means surety bonds obtained by the Borrower or any Subsidiary in the
ordinary course of business consistent with past practice and the indemnification or reimbursement
obligations of the Borrower or such Subsidiary in connection therewith.




          “Swap Contract” means any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement.




          “Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any valid netting agreement relating to such Swap Contracts, (a)
for any date on or after the date such Swap Contracts have been closed out and


29









 







termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any date prior to the
date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such
Swap Contracts, as determined based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or
any Affiliate of a Lender).




          “Swing Line” means the revolving credit facility made available by the Swing Line
Lender pursuant to Section 2.04.




          “Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section
2.04.




          “Swing Line Lender” means Bank of America in its capacity as provider of Swing Line
Loans, or any successor swing line lender hereunder.




          “Swing Line Loan” has the meaning specified in Section 2.04(a).




          “Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to
Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit
B.




          “Swing Line Sublimit” means an amount equal to the lesser of (a) $50,000,000 and (b)
the unused Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition to, the
Aggregate Commitments.




          “Tangible Assets” means at any date, with respect to any Person, (a) the sum of all
amounts that would, in accordance with GAAP, be set forth opposite the caption “total assets” (or
any like caption) on a consolidated balance sheet of such Person at such date minus (b) the sum of
all amounts that would, in accordance with GAAP, be set forth opposite the captions “goodwill” or
other intangible categories (or any like caption) on a consolidated balance sheet of such Person on
such date.




          “Tax Separation Agreement” means that Tax Separation Agreement, dated as of October
22, 2007, between Peabody and the Borrower.




          “Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto.




          “Threshold Amount” means $20,000,000.




          “Total Outstandings” means the aggregate Outstanding Amount of all Revolving Credit
Loans, Swing Line Loans and L/C Obligations.




          “Transaction” means, collectively, (a) the entering into by the Loan
Parties of the Loan Documents to which they are a party, (b) the Senior Notes Offering and (c) the
payment of the fees and expenses incurred in connection with the consummation of the foregoing.





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          “Type” means, with respect to a Revolving Credit Loan, its character as a Base Rate
Loan or a Eurocurrency Rate Loan.




          “UCC” means the Uniform Commercial Code as in effect in the State of New York;
provided, that if perfection or the effect of perfection or non-perfection or the priority
of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect
in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code
as in effect from time to time in such other jurisdiction for purposes of the provisions hereof
relating to such perfection, effect of perfection or non-perfection or priority.




          “UCP” means the Uniform Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500, as the same may be amended from time to
time.




          “Unfunded Pension Liability” means the excess of a Pension Plan’s accrued benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s
assets, determined in accordance with the actuarial assumptions used for funding the Pension Plan
pursuant to Section 412 of the Code for the applicable plan year.




          “United States” and “U.S.” mean the United States of America.




          “Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).




          “Unrestricted Cash” means cash or Cash Equivalents of the Borrower or any of its
Subsidiaries that would not appear as “restricted” on a consolidated balance sheet of the Borrower
and its Subsidiaries.




          “U.S. Loan Party” means any Loan Party that is organized under the laws of one of the
states of the United States of America and that is not a CFC.




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





     (a) The definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase
“without limitation.” The word “will” shall be construed to have the same meaning
and effect as the word “shall.” Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified (subject to
any restrictions on
such amendments, supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to include such
Person’s successors and assigns, (iii) the words “herein,” “hereof” and
“hereunder,” and words of similar import when used in any Loan Document, shall be
construed to refer to such Loan Document in its entirety and not to any particular provision
thereof, (iv) all references in a Loan Document to Articles, Sections, Preliminary
Statements, Exhibits



31









 







and Schedules shall be construed to refer to Articles and Sections of,
and Preliminary Statements, Exhibits and Schedules to, the Loan Document in which such
references appear, (v) any reference to any law shall include all statutory and regulatory
provisions consolidating, amending, replacing or interpreting such law and any reference to
any law or regulation shall, unless otherwise specified, refer to such law or regulation as
amended, modified or supplemented from time to time, and (vi) the words “asset” and
“property” shall be construed to have the same meaning and effect and to refer to
any and all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.




     (b) In the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including;” the words “to” and
“until” each mean “to but excluding;” and the word “through” means
“to and including.”




     (c) Section headings herein and in the other Loan Documents are included for
convenience of reference only and shall not affect the interpretation of this Agreement or
any other Loan Document.



          1.03 Accounting Terms. (a) Generally. All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data (including financial ratios and other
financial calculations) required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a
manner consistent with that used in preparing the Audited Financial Statements, except as otherwise
specifically prescribed herein.




          (b) Changes in GAAP. If at any time any Accounting Change or any other change as
permitted by Section 7.14 would affect the computation of any financial ratio or
requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall
so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to
amend such ratio or requirement to preserve the original intent thereof in light of such Accounting
Change as if such Accounting Change has not been made (subject to the approval of the Required
Lenders); provided, that until so amended, all financial covenants, standards, and terms in
this Agreement shall continue to be calculated or construed as if such Accounting Change had not
occurred.




          (c) Pro Forma Basis Calculation. Notwithstanding the foregoing, the parties hereto
acknowledge and agree that all calculations of the Consolidated Interest Coverage Ratio and the
Consolidated Net Leverage Ratio for purposes of determining compliance with Section 7.11(a)
and (b) shall be made on a Pro Forma Basis (i) with respect to any acquisition by the
Borrower or its Subsidiaries of any Person, property or assets, if the Consolidated EBITDA for
the acquired Person or business for the most recent four fiscal quarter period for which financial
statements are available is equal to or greater than 5% of the Consolidated EBITDA of the Borrower
and its Subsidiaries for such period and (ii) with respect to any disposition by the Borrower or
its Subsidiaries of any Person, property or assets, if the Consolidated EBITDA for the Person or
business being disposed of for the most recent four fiscal quarter period for which financial
statements are available was equal to or exceeded 5% of the Consolidated EBITDA of the Borrower and
its Subsidiaries for such period.





32












 





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




          1.05
Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of
Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at
such time; provided, however, that with respect to any Letter of Credit that, by
its terms or the terms of any Issuer Document related thereto, provides for one or more automatic
increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be
the maximum stated amount of such Letter of Credit after giving effect to all such increases,
whether or not such maximum stated amount is in effect at such time.




ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS




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




          2.02
Borrowings, Conversions and Continuations of Loans. (a) Each Revolving Credit
Borrowing, each conversion of Revolving Credit Loans from one Type to the other, and each
continuation of Eurocurrency Rate Loans shall be made upon the Borrower’s irrevocable notice to the
Administrative Agent, which may be given by telephone. Each such notice must be received by the
Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date
of any Borrowing of, conversion to or continuation of Eurocurrency Rate Loans or of any conversion
of Eurocurrency Rate Loans, and (ii) on the requested date of any Borrowing of Base Rate Loans;
provided, however, that if the Borrower wishes to request Eurocurrency Rate Loans
having an Interest Period other than one, two, three, or six months or, to the extent available to
all Lenders making such Eurocurrency Rate Loans, nine or twelve months in duration as provided in
the definition of “Interest Period”, the applicable notice must be received by the Administrative
Agent not later than 11:00 a.m. four Business Days prior to the requested date of such Borrowing,
conversion or continuation of Eurocurrency Rate Loans, whereupon the Administrative Agent shall
give prompt notice to the Lenders of such request and determine whether the requested Interest
Period is acceptable to all of them. Not later than 11:00 a.m., three Business Days before the
requested date of such Borrowing, conversion or continuation of Eurocurrency Rate Loans, the
Administrative Agent shall notify the Borrower (which notice may be by telephone) whether or not the requested
Interest Period has been consented to by all the Lenders. Each telephonic notice by the Borrower






33









 







pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the
Administrative Agent of a written Borrowing Notice, appropriately completed and signed by a
Responsible Officer of the Borrower. Each Borrowing of, conversion to or continuation of
Eurocurrency Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of
$500,000 in excess thereof. Except as provided in Sections 2.03(c) and 2.04(c),
each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a
whole multiple of $100,000 in excess thereof. Each Borrowing Notice (whether telephonic or
written) shall specify (i) whether the Borrower is requesting a Revolving Credit Borrowing, a
conversion of Revolving Credit Loans from one Type to the other, or a continuation of Eurocurrency
Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may
be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted
or continued, (iv) the Type of Loans to be borrowed or to which existing Revolving Credit Loans are
to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto.
If the Borrower fails to specify a Type of Loan in a Borrowing Notice or if the Borrower fails to
give a timely notice requesting a conversion or continuation of Eurocurrency Rate Loans, then the
applicable Revolving Credit Loans shall be made as, or converted to, Base Rate Loans. Any such
automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest
Period then in effect with respect to the applicable Eurocurrency Rate Loans. If the Borrower
requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any such
Borrowing Notice, but fails to specify an Interest Period, it will be deemed to have specified an
Interest Period of one month. Notwithstanding anything to the contrary herein, a Swing Line Loan
may not be converted to a Eurocurrency Rate Loan.




          (b) Following receipt of a Borrowing Notice, the Administrative Agent shall promptly notify
each Lender of the amount of its Applicable Percentage under the Facility of the Revolving Credit
Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the
Administrative Agent shall notify each Lender of the details of any automatic conversion to Base
Rate Loans described in the preceding subsection. In the case of a Revolving Credit
Borrowing, each Lender shall make the amount of its Loan available to the Administrative Agent in
immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the
Business Day specified in the applicable Borrowing Notice. Upon satisfaction of the applicable
conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit
Extension, Section 4.01), the Administrative Agent shall make all funds so received
available to the Borrower in like funds as received by the Administrative Agent either by (i)
crediting the account of the Borrower on the books of Bank of America with the amount of such funds
or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and
reasonably acceptable to) the Administrative Agent by the Borrower; provided,
however, that if, on the date a Borrowing Notice with respect to a Revolving Credit
Borrowing is given by the Borrower, there are L/C Advances outstanding, then the proceeds of such
Revolving Credit Borrowing, first, shall be applied to the payment in full of any
Unreimbursed Amounts in respect thereof, and second, shall be made available to the
Borrower as provided above.




          (c) Unless the Lenders are compensated for any losses under Section 3.05, a
Eurocurrency Rate Loan may be continued or converted only on the last day of an Interest Period for
such Eurocurrency Rate Loan. During the existence of a Default, no Loans may be requested
as, converted to or continued as Eurocurrency Rate Loans if the Required Lenders or the
Administrative Agent so notify the Borrower.




34









 








          (d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurocurrency Rate Loans upon determination of
such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent
shall notify the Borrower and the Lenders of any change in Bank of America’s prime rate used in
determining the Base Rate promptly following the public announcement of such change.




          (e) After giving effect to all Revolving Credit Borrowings, all conversions of Revolving
Credit Loans from one Type to the other, and all continuations of Revolving Credit Loans as the
same Type, there shall not be more than fifteen (15) Interest Periods in effect hereunder.




          2.03 Letters of Credit. (a) The Letter of Credit Commitment. (i) Subject to the
terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements
of the Lenders set forth in this Section 2.03, (1) from time to time on any Business Day
during the period from the Restatement Date until the Letter of Credit Expiration Date, to issue
Letters of Credit for the account of the Borrower or any Subsidiary, and to amend or extend Letters
of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor
drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters
of Credit issued for the account of the Borrower or any Subsidiary and any drawings thereunder;
provided, that after giving effect to any L/C Credit Extension with respect to any Letter
of Credit, (x) the Total Outstandings shall not exceed the Facility, and (y) the aggregate
Outstanding Amount of the Revolving Credit Loans of any Lender, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such
Lender’s Commitment. Each request by the Borrower or any Subsidiary for the issuance or amendment
of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit
Extension so requested complies with the conditions set forth in the proviso to the preceding
sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the
Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the
Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit
that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit
shall be deemed to have been issued pursuant hereto, and from and after the Restatement Date shall
be subject to and governed by the terms and conditions hereof.





          (ii) No L/C Issuer shall issue any Letter of Credit if:




          (A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter
of Credit would occur more than twelve months after the date of issuance or last extension,
unless the Required Lenders have approved such expiry date; or




          (B) the expiry date of such requested Letter of Credit would occur after the Letter of
Credit Expiration Date, unless all the Lenders have approved such expiry date.




          (iii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:



35









 






          (A) any order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit,
or any Law applicable to the L/C Issuer or any request or directive (whether or not having
the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer
shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of
credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer
with respect to such Letter of Credit any restriction, reserve or capital requirement (for
which the L/C Issuer is not otherwise compensated hereunder) not in effect on the
Restatement Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense
which was not applicable on the Restatement Date and which the L/C Issuer in good faith
deems material to it;




          (B) the issuance of such Letter of Credit would violate one or more policies of the L/C
Issuer;




          (C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such
Letter of Credit is in an initial stated amount less than $100,000, in the case of a
commercial Letter of Credit, or $250,000, in the case of a standby Letter of Credit;




          (D) such Letter of Credit is to be denominated in a currency other than Dollars;




          (E) subject to Section 2.03(b)(iv), such Letter of Credit contains any
provisions for automatic reinstatement of the stated amount after any drawing thereunder; or




          (F) a default of any Lender’s obligations to fund under Section 2.03(c) exists
or any Lender is at such time a Defaulting Lender hereunder, unless the L/C Issuer has
entered into satisfactory arrangements with the Borrower or such Lender to eliminate the L/C
Issuer’s risk with respect to such Lender.




          (iv) No L/C Issuer shall be under any obligation to amend any Letter of Credit if (A)
such L/C Issuer would not have any obligation at such time to issue such Letter of Credit in
its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit
does not accept the proposed amendment to such Letter of Credit.




          (v) The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of
Credit issued by it and the documents associated therewith, and the L/C Issuer shall have
all of the benefits and immunities (A) provided to the Administrative Agent in Article
IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection
with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents
pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used
in Article IX included the L/C Issuer with respect to such acts or omissions, and
(B) as additionally provided herein with respect to the L/C Issuer.






          


(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of
Credit. (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to an L/C Issuer (with a copy to the






36









 







Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer
of the Borrower. Such Letter of Credit Application must be received by such L/C Issuer and the
Administrative Agent not later than 11:00 a.m. at least two Business Days (or such later date and
time as the Administrative Agent and such L/C Issuer may agree in a particular instance in their
sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In
the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit
Application shall specify in form and detail reasonably satisfactory to the L/C Issuer: (A) the
proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the
amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof;
(E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the
full text of any certificate to be presented by such beneficiary in case of any drawing thereunder;
and (G) such other matters as the L/C Issuer may reasonably require. In the case of a request for
an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify
in form and detail reasonably satisfactory to the L/C Issuer (1) the Letter of Credit to be
amended; (2) the proposed date of amendment thereof (which shall be a Business Day); (3) the nature
of the proposed amendment; and (4) such other matters as the L/C Issuer may reasonably require.
Additionally, the Borrower shall furnish to the L/C Issuer and the Administrative Agent such other
documents and information pertaining to such requested Letter of Credit issuance or amendment,
including any Issuer Documents, as the L/C Issuer or the Administrative Agent may reasonably
require.





          (ii) Promptly after receipt of any Letter of Credit Application, the applicable L/C
Issuer will confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application from the
Borrower and, if not, such L/C Issuer will provide the Administrative Agent with a copy
thereof. Unless such L/C Issuer has received written notice from any Lender, the
Administrative Agent or any Loan Party, at least one Business Day prior to the requested
date of issuance or amendment of the applicable Letter of Credit, that one or more
applicable conditions contained in Article IV shall not then be satisfied, then,
subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date,
issue a Letter of Credit for the account of the Borrower or enter into the applicable
amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and
customary business practices. Immediately upon the issuance of each Letter of Credit, each
Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase
from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the
product of such Lender’s Applicable Percentage times the amount of such Letter of
Credit.




          (iii) If the Borrower so requests in any applicable Letter of Credit Application, an
L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that
has automatic extension provisions (each, an “Auto-Extension Letter of Credit”);
provided, that any such Auto-Extension Letter of Credit must permit the applicable
L/C Issuer to prevent any such extension at least once in each twelve-month period
(commencing with the date of issuance of such Letter of Credit) by giving prior notice to
the beneficiary thereof not later than a day (the “Non-Extension Notice Date”)
in each such twelve-month period to be agreed upon at the time such Letter of Credit is
issued. Unless otherwise directed by the applicable L/C Issuer, the Borrower shall not be



37









 






required to make a specific request to the applicable L/C Issuer for any such extension.
Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have
authorized (but may not require) the applicable L/C Issuer to permit the extension of such
Letter of Credit at any time to an expiry date not later than the Letter of Credit
Expiration Date; provided, however, that the applicable L/C Issuer shall not
permit any such extension if (A) the L/C Issuer has determined that it would not be
permitted, or would have no obligation at such time to issue such Letter of Credit in its
revised form (as extended) under the terms hereof (by reason of the provisions of clause
(ii) or (iii) of Section 2.03(a)), or (B) it has received notice (which may be by
telephone or in writing) on or before the day that is five Business Days before the
Non-Extension Notice Date from the Administrative Agent or the Borrower that one or more of
the applicable conditions specified in Section 4.02 is not then satisfied, and in
each such case directing the applicable L/C Issuer not to permit such extension.




          (iv) If the Borrower so requests in any applicable Letter of Credit Application, an L/C
Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that
permits the automatic reinstatement of all or a portion of the stated amount thereof after
any drawing thereunder (each, an “Auto-Reinstatement Letter of Credit”). Unless
otherwise directed by the applicable L/C Issuer, the Borrower shall not be required to make
a specific request to the applicable L/C Issuer to permit such reinstatement. Once an
Auto-Reinstatement Letter of Credit has been issued, except as provided in the following
sentence, the Lenders shall be deemed to have authorized (but may not require) the
applicable L/C Issuer to reinstate all or a portion of the stated amount thereof in
accordance with the provisions of such Letter of Credit. Notwithstanding the foregoing, if
such Auto-Reinstatement Letter of Credit permits the applicable L/C Issuer to decline to
reinstate all or any portion of the stated amount thereof after a drawing thereunder by
giving notice of such non-reinstatement within a specified number of days after such drawing
(the “Non-Reinstatement Deadline”), the applicable L/C Issuer shall not permit such
reinstatement if it has received a notice (which may be by telephone or in writing) on or
before the day that is seven Business Days before the Non-Reinstatement Deadline from the
Administrative Agent or the Borrower that one or more of the applicable conditions specified
in Section 4.02 is not then satisfied (treating such reinstatement as an L/C Credit
Extension for purposes of this clause) and, in each case, directing the applicable L/C
Issuer not to permit such reinstatement.




          (v) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the beneficiary thereof, the
applicable L/C Issuer will also deliver to the Borrower and the Administrative Agent a true
and complete copy of such Letter of Credit or amendment.



          (c) Drawings and Reimbursements; Funding of Participations. (i) Upon receipt from
the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the
applicable L/C Issuer shall notify the Borrower and the Administrative Agent thereof. The Borrower
shall reimburse such L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing on the date on which the Borrower receives notice
of any payment by the L/C Issuer under a Letter of Credit, provided that the Borrower
receives notice by 1:00 p.m., New York City time on such date, or on the next Business Day if
notice is






38









 







not received by such time (each such date, an “Honor Date”). If the Borrower
fails to so reimburse such L/C Issuer by the time set forth in the preceding sentence, the
applicable L/C Issuer shall promptly notify the Administrative Agent of the Honor Date and the
amount of the unreimbursed drawing (the “Unreimbursed Amount”). The Administrative Agent
shall promptly notify each Lender thereof and of the amount of such Lender’s Applicable Percentage
thereof. Any notice given by such L/C Issuer or the Administrative Agent pursuant to this
Section 2.03(c)(i) may be given by telephone if immediately confirmed in writing;
provided, that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.





          (ii) Each Lender shall upon any notice pursuant to Section 2.03(c)(i) make
funds available to the Administrative Agent for the account of the L/C Issuer at the
Administrative Agent’s Office in an amount equal to its Applicable Percentage of the
Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by
the Administrative Agent, whereupon, subject to the provisions of Section
2.03(c)(iii), each Lender that so makes funds available shall be deemed to have made a
Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the
funds so received to the L/C Issuer.




          (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Revolving Credit Borrowing of Base Rate Loans because the conditions set forth in
Section 4.02 cannot be satisfied or for any other reason, the Borrower shall be
deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable
on demand (together with interest) and shall bear interest at (A) the rate applicable to
Base Rate Loans from the Honor Date to the date reimbursement is required pursuant to
Section 2.03(c)(i) and (B) thereafter, the Default Rate. Each Lender’s payment to
the Administrative Agent for the account of the L/C Issuer pursuant to Section
2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C
Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03.




          (iv) Until each Lender funds its Revolving Credit Loan or L/C Advance pursuant to this
Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter of
Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be
solely for the account of the L/C Issuer.




          (v) Each Lender’s obligation to make Revolving Credit Loans or L/C Advances to
reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this
Section 2.03(c), shall be absolute and unconditional and shall not be affected by
any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the L/C Issuer, the Borrower or any other Person for any
reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Lender’s obligation to make
Revolving Credit Loans pursuant to this Section 2.03(c) is subject to the conditions
set forth in Section 4.02 (other than delivery by the Borrower of a Borrowing
Notice). No such



39









 






making of an L/C Advance shall relieve or otherwise impair the obligation
of the Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C
Issuer under any Letter of Credit, together with interest as provided herein.




          (vi) If any Lender fails to make available to the Administrative Agent for the account
of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(ii), the L/C Issuer shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment is
immediately available to the L/C Issuer at a rate per annum equal to the Overnight Rate,
plus any administrative, processing or similar fees customarily charged by the L/C Issuer in
connection with the foregoing. If such Lender pays such amount (with interest and fees as
aforesaid), the amount so paid shall constitute such Lender’s Loan included in the relevant
L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of
the L/C Issuer submitted to any Lender (through the Administrative Agent) with respect to
any amounts owing under this Section 2.03(c)(vi) shall be conclusive absent manifest
error.



          (d) Repayment of Participations. (i) At any time after the L/C Issuer has made a
payment under any Letter of Credit and has received from any Lender such Lender’s L/C Advance in
respect of such payment in accordance with Section 2.03(c), if the Administrative Agent
receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed
Amount or interest thereon (whether directly from the Borrower or otherwise, including proceeds of
cash collateral applied thereto by the Administrative Agent), the Administrative Agent will
distribute to such Lender its Applicable Percentage thereof (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender’s L/C Advance was
outstanding) in the same funds as those received by the Administrative Agent.





          (ii) If any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the
circumstances described in Section 10.05 (including pursuant to any settlement
entered into by the L/C Issuer in its discretion), each Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof on
demand of the Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned by such Lender, at a rate per annum equal to the
applicable Overnight Rate from time to time in effect. The obligations of the Lenders under
this clause shall survive the payment in full of the Obligations and the termination of this
Agreement.



          (e) Obligations Absolute. The obligation of the Borrower to reimburse the L/C Issuer
for each drawing under each Letter of Credit and to repay each Unreimbursed
Amount shall be absolute, unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances, including the following:




40









 









          (i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other Loan Document;




          (ii) the existence of any claim, counterclaim, setoff, defense or other right that the
Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any such transferee
may be acting), the L/C Issuer or any Lender, whether in connection with this Agreement, the
transactions contemplated hereby or by such Letter of Credit or any agreement or instrument
relating thereto, or any unrelated transaction;




          (iii) any draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under such
Letter of Credit, except to the extent caused by the L/C Issuer’s gross negligence or
willful misconduct;




          (iv) any payment by the L/C Issuer under such Letter of Credit against presentation of
a draft or certificate that does not strictly comply with the terms of such Letter of
Credit, so long as the L/C Issuer shall have determined in the absence of gross negligence
or willful misconduct, in good faith and in accordance with the standard of care specified
in the Uniform Commercial Code of the State of New York, that the documents (including each
draft) delivered under such Letter of Credit in connection with such presentment appear on
their face to be in conformity with such Letter of Credit;




          (v) any payment made by the L/C Issuer under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of such Letter of Credit, including any arising in connection with any
proceeding under any Debtor Relief Law; or




          (vi) any other action taken or omitted to be taken by the L/C Issuer under or in
connection with any Letter of Credit or the related drafts or documents, whether or not
similar to any of the foregoing, if done in the absence of gross negligence or willful
misconduct, in good faith and in accordance with the standards of care specified in the
Uniform Commercial Code of the State of New York .



          The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto
that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s
instructions or other irregularity, the Borrower will promptly notify the L/C Issuer. The Borrower
shall be conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.




          (f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying any
drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document
(other than any sight draft, certificates and documents expressly required by the
Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or




41









 







the authority of the Person executing or delivering any such document. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document
or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes all
risks of the acts or omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided, however, that this assumption is not intended to, and
shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the
beneficiary or transferee at law or under any other agreement. Notwithstanding anything to the
contrary herein the Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be
liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused
by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful failure to
pay under any Letter of Credit after the presentation to it by the beneficiary or transferee of a
sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of
Credit. In furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents
that appear on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.




          (g) Cash Collateral. (i) Upon the request of the Administrative Agent, if, as of the
Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, the
Borrower shall, in each case, immediately Cash Collateralize the then Outstanding Amount of such
L/C Obligation.





          (ii) Sections 2.05 and 8.02(c)set forth certain additional
requirements to deliver cash collateral hereunder. For purposes of this Section
2.03, Section 2.05 and Section 8.02(c), “Cash Collateralize”
means to pledge to the Administrative Agent and deposit in the Cash Collateral Account, for
the benefit of the L/C Issuer and the Lenders, as collateral for the L/C Obligations, cash
or deposit account balances pursuant to documentation in form and substance reasonably
satisfactory to the Administrative Agent and the L/C Issuer (which documents are hereby
consented to by the Lenders). Derivatives of such term have corresponding meanings. The
Borrower hereby grants to the Administrative Agent, for the benefit of the L/C Issuer and
the Lenders, a security interest in all such cash, deposit accounts and all balances therein
and all proceeds of the foregoing. Cash collateral shall be maintained in the Cash
Collateral Account. If at any time the Administrative Agent determines that any funds held
in the Cash Collateral Account are subject to any right or claim of any Person other than
the Administrative Agent or that the total amount of such funds is less than the aggregate
Outstanding Amount of all L/C Obligations, the Borrower will, forthwith upon demand by the
Administrative Agent, pay to the Administrative Agent, as additional funds to be
deposited in the Cash Collateral Account, an amount equal to the excess of (x) such
aggregate Outstanding Amount over (y) the total amount of funds, if any, then held in the



42









 






Cash Collateral Account that the Administrative Agent determines to be free and clear of any
such right and claim. Upon the drawing of any Letter of Credit for which funds are on
deposit in the Cash Collateral Account, such funds shall be applied, to the extent permitted
under applicable Laws, to reimburse the L/C Issuer for the amount of such drawing.



          (h) Applicability of ISP and UCP. Unless otherwise expressly agreed by the L/C Issuer
and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an
Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit,
and (ii) the rules of the UCP at the time of issuance shall apply to each commercial Letter of
Credit.




          (i) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage a Letter of Credit fee (the
“Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate for
Eurocurrency Rate Loans times the daily amount available to be drawn under such Letter of
Credit. For purposes of computing the daily amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance with Section
1.05. Letter of Credit Fees shall be (i) computed on a quarterly basis in arrears and (ii) due
and payable on the first Business Day after the end of each March, June, September and December,
commencing with the first such date to occur after the issuance of such Letter of Credit, on the
Letter of Credit Expiration Date and thereafter on demand. If there is any change in the
Applicable Rate during any quarter, the daily amount available to be drawn under each Letter of
Credit shall be computed and multiplied by the Applicable Rate separately for each period during
such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary
contained herein, upon the request of the Required Lenders, while any Event of Default exists, all
Letter of Credit Fees shall accrue at the Default Rate.




          (j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrower shall pay directly to the L/C Issuer for its own account a fronting fee with respect to
each Letter of Credit, at the rate of 0.25% per annum on the face amount drawn under each Letter of
Credit, computed on the daily amount available to be drawn under such Letter of Credit on a
quarterly basis in arrears. Such fronting fee shall be due and payable on the first Business Day
after the end of each March, June, September and December in respect of the most recently-ended
quarterly period (or portion thereof, in the case of the first payment), commencing with the first
such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration
Date and thereafter on demand. For purposes of computing the daily amount available to be drawn
under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.05. In addition, the Borrower shall pay directly to the L/C Issuer for its
own account the customary issuance, presentation, amendment and other processing fees, and other
standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time in
effect. Such customary fees and standard costs and charges are due and payable on demand and are
nonrefundable.




          (k) Conflict with Issuer Documents. In the event of any conflict between the terms
hereof and the terms of any Issuer Document, the terms hereof shall control.




43









 








          (l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of
Credit issued or outstanding hereunder is in support of any obligations of, or is for the account
of, a Subsidiary, the Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and
all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of
Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower, and that
the Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.




          2.04 Swing Line Loans. (a) The Swing Line. Subject to the terms and conditions set
forth herein, the Swing Line Lender agrees, in reliance upon the agreements of the other Lenders
set forth in this Section 2.04, to make loans (each such loan, a “Swing Line Loan”)
to the Borrower from time to time on any Business Day during the Availability Period in an
aggregate principal amount not to exceed at any time outstanding the amount of the Swing Line
Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable
Percentage of the Outstanding Amount of Revolving Credit Loans and L/C Obligations of the Lender
acting as Swing Line Lender, may exceed the amount of such Lender’s Commitment; provided,
however, that after giving effect to any Swing Line Loan, (i) the Total Outstandings shall
not exceed the Facility at such time, and (ii) the aggregate Outstanding Amount of the Revolving
Credit Loans of any Lender at such time, plus such Lender’s Applicable Percentage of the
Outstanding Amount of all L/C Obligations at such time, plus such Lender’s Applicable
Percentage of the Outstanding Amount of all Swing Line Loans at such time shall not exceed such
Lender’s Commitment, and provided further that the Borrower shall not use the
proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing
limits, and subject to the other terms and conditions hereof, the Borrower may borrow under this
Section 2.04, prepay under Section 2.05, and reborrow under this Section
2.04. Each Swing Line Loan shall be a BBA LIBOR Daily Floating Rate Loan. Immediately upon
the making of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing
Line Loan in an amount equal to the product of such Lender’s Applicable Percentage times
the amount of such Swing Line Loan.




          (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower’s
irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent
not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be
borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing date, which shall
be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the Swing
Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Promptly after receipt by the Swing
Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent has also received
such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent
(by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received
notice (by telephone or in writing) from the Administrative Agent (including at the request of any Lender) prior to 2:00
p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to
make such Swing Line Loan as a result of the limitations set forth in the first proviso to the





44









 







first sentence of Section 2.04(a), or (B) that one or more of the applicable conditions
specified in Article IV is not then satisfied, then, subject to the terms and conditions
hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in
such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Borrower at
its office by crediting the account of the Borrower on the books of the Swing Line Lender in
immediately available funds.




          (c) Refinancing of Swing Line Loans. (i) The Swing Line Lender at any time in its
sole and absolute discretion may, and in any event on the 10th Business Day after such
Swing Line Loan is made, shall request, on behalf of the Borrower (which hereby irrevocably
authorizes the Swing Line Lender to so request on its behalf), that each Lender make a Base Rate
Loan in an amount equal to such Lender’s Applicable Percentage of the amount of Swing Line Loans
then outstanding or, in the case of any request given with respect to Swing Line Loans which have
been outstanding for 10 Business Days, the amount of such outstanding Swing Line Loans;
provided, that such Loans may, and upon the Borrower’s request shall, be made as
Eurocurrency Rate Loans if a Eurocurrency Rate Loan could otherwise be made pursuant to Section
2.02. Such request shall be made in writing (which written request shall be deemed to be a
Borrowing Notice for purposes hereof) and in accordance with the requirements of Section
2.02, without regard to the minimum and multiples specified therein for the principal amount of
Base Rate Loans or Eurocurrency Loans, but subject to the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section 4.02. The Swing Line Lender shall
furnish the Borrower with a copy of the applicable Borrowing Notice promptly after delivering such
notice to the Administrative Agent. Each Lender shall make an amount equal to its Applicable
Percentage of the amount specified in such Borrowing Notice available to the Administrative Agent
in immediately available funds for the account of the Swing Line Lender at the Administrative
Agent’s Office not later than 1:00 p.m. on the day specified in such Borrowing Notice, whereupon,
subject to Section 2.04(c)(ii), each Swing Line Lender that so makes funds available shall
be deemed to have made a Base Rate Loan (or Eurocurrency Rate Loan, if applicable) to the Borrower
in such amount. The Administrative Agent shall remit the funds so received to the Swing Line
Lender.





          (ii) If for any reason any Swing Line Loan cannot be refinanced by such a Revolving
Credit Borrowing in accordance with Section 2.04(c)(i), the request for Base Rate
Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request
by the Swing Line Lender that each of the Lenders fund its risk participation in the
relevant Swing Line Loan and each Lender’s payment to the Administrative Agent for the
account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed
payment in respect of such participation.




          (iii) If any Lender fails to make available to the Administrative Agent for the account
of the Swing Line Lender any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.04(c) by the time specified in Section
2.04(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon for the period
from the date such payment is required to the date on which such payment is immediately available to
the Swing Line Lender at a rate per annum equal to the Overnight Rate from time to time in effect,
plus any administrative, processing or similar



45









 






fees customarily charged by the Swing Line Lender in connection with the foregoing. If such
Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall
constitute such Lender’s Loan included in the relevant Borrowing or funded participation in
the relevant Swing Line Loan, as the case may be. A certificate of the Swing Line Lender
submitted to any Lender (through the Administrative Agent) with respect to any amounts owing
under this clause (iii) shall be conclusive absent manifest error.




          (iv) Each Lender’s obligation to make Revolving Credit Loans or to purchase and fund
risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be
absolute and unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right which such Lender may have against
the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided, however, that each
Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.04(c)
is subject to the conditions set forth in Section 4.02. No such funding of risk
participations shall relieve or otherwise impair the obligation of the Borrower to repay
Swing Line Loans, together with interest as provided herein.



          (d) Repayment of Participations. (i) At any time after any Lender has purchased and
funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on
account of such Swing Line Loan, the Swing Line Lender will distribute to such Lender its
Applicable Percentage of such payment (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender’s risk participation was funded) in the same
funds as those received by the Swing Line Lender.





    (ii) If any payment received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the Swing Line Lender under
any of the circumstances described in Section 10.05 (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay
to the Swing Line Lender its Applicable Percentage thereof on demand of the Administrative
Agent, plus interest thereon from the date of such demand to the date such amount is
returned, at a rate per annum equal to the applicable Overnight Rate. The Administrative
Agent will make such demand upon the request of the Swing Line Lender. The obligations of
the Lenders under this clause shall survive the payment in full of the Obligations and the
termination of this Agreement.



          (e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing the Borrower for interest on the Swing Line Loans. Until each Lender
funds its Base Rate Loan or risk participation pursuant to this Section 2.04 to refinance
such Lender’s Applicable Percentage of any Swing Line Loan, interest in respect of such Applicable
Percentage shall be solely for the account of the Swing Line Lender.




          (f) Payments Directly to Swing Line Lender. The Borrower shall make all payments of
principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.




46









 








          2.05 Prepayments. (a) Optional. (i) The Borrower may, upon notice to the
Administrative Agent, at any time or from time to time voluntarily prepay Revolving Credit Loans in
whole or in part without premium or penalty; provided, that (A) such notice must be
received by the Administrative Agent not later than 11:00 a.m. (1) three Business Days prior to any
date of prepayment of Eurocurrency Rate Loans and (2) on the date of prepayment of Base Rate Loans;
(B) any prepayment of Eurocurrency Rate Loans shall be in a principal amount of $1,000,000 or a
whole multiple of $500,000 in excess thereof; and (C) any prepayment of Base Rate Loans shall be in
a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case,
if less, the entire principal amount thereof then outstanding. Each such notice shall specify the
date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate
Loans are to be prepaid, the Interest Period(s) of such Loans. The Administrative Agent will
promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s
ratable portion of such prepayment (based on such Lender’s Applicable Percentage in respect of the
Facility). If such notice is given by the Borrower, the Borrower shall make such prepayment and
the payment amount specified in such notice shall be due and payable on the date specified therein.
Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the
amount prepaid, together with any additional amounts required pursuant to Section 3.05.





          (ii) The Borrower may, upon notice to the Swing Line Lender (with a copy to the
Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans
in whole or in part without premium or penalty; provided, that (A) such notice must
be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m.
on the date of the prepayment, and (B) any such prepayment shall be in a minimum principal
amount of $100,000. Each such notice shall specify the date and amount of such prepayment.
If such notice is given by the Borrower, the Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date specified
therein.



          (b) Mandatory. (i) If the Borrower or any of its Subsidiaries Disposes of any
property (other than any Disposition of any property permitted by Section 7.05 (a), (b), (c),
(d), (e), (h) or (m)) which results in the realization by such Person of Net Cash
Proceeds, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such
Net Cash Proceeds immediately upon receipt thereof by such Person (such prepayments to be applied
as set forth in clauses (v) below), without a corresponding permanent reduction in Commitments;
provided, however, that, with respect to any Net Cash Proceeds realized under a
Disposition described in this Section 2.05(b)(i), at the election of the Borrower (as
notified by the Borrower to the Administrative Agent on or prior to the date of such Disposition),
and so long as no Default shall have occurred and be continuing, the Borrower or such Subsidiary
may reinvest all or any portion of such Net Cash Proceeds in operating assets or to make any
Permitted Acquisition so long as within 270 days after the receipt of such Net Cash Proceeds, such
purchase shall have been consummated (as certified by the Borrower in writing to the Administrative
Agent); and provided further, however, that any Net Cash Proceeds not
reinvested shall be applied to the prepayment of the Loans as set forth in this Section
2.05(b)(i) at the end of such 270 day period.




47









 









          (ii) Upon the incurrence or issuance by the Borrower or any of its Subsidiaries of any
senior secured Indebtedness (other than senior secured Indebtedness expressly permitted to
be incurred or issued pursuant to Section 7.02, the Borrower shall prepay an
aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received
therefrom immediately upon receipt thereof by the Borrower or such Subsidiary (such
prepayments to be applied as set forth in clause (v) below), with a corresponding permanent
reduction in Commitments.




          (iii) Upon any Extraordinary Receipt received by or paid to or for the account of the
Borrower or any of its Subsidiaries, and not otherwise included in clause (i) or (ii) of
this Section 2.05(b), the Borrower shall prepay an aggregate principal amount of
Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt
thereof by the Borrower or such Subsidiary (such prepayments to be applied as set forth in
clause (v) below), without a corresponding permanent reduction in Commitments;
provided, however, that at the election of the Borrower (as notified by the
Borrower to the Administrative Agent on or prior to the date of receipt of such cash
proceeds), and so long as no Default shall have occurred and be continuing, the Borrower or
such Subsidiary may apply within 270 days after the receipt of such cash proceeds to replace
or repair the equipment, fixed assets or real property in respect of which such cash
proceeds were received, reinvest in other operating assets or make any Permitted
Acquisition; and provided, further, however, that any cash proceeds
not so applied shall be applied to the prepayment of the Loans as set forth in this
Section 2.05(b)(iii) at the end of such 270 day period.




          (iv) If the Administrative Agent notifies the Borrower at any time that the Total
Outstandings at such time exceed the Aggregate Commitments then in effect, then, within two
Business Days after receipt of such notice, the Borrower shall prepay Loans and/or the
Borrower shall Cash Collateralize the L/C Obligations in an aggregate amount sufficient to
reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of
the Aggregate Commitments then in effect; provided, however, that, subject
to the provisions of Section 2.03(g)(ii), the Borrower shall not be required to Cash
Collateralize the L/C Obligations pursuant to this Section 2.05(b)(v) unless after
the prepayment in full of the Loans the Total Outstandings exceed the Aggregate Commitments
then in effect.




          (v) Prepayments of the Facility made pursuant to this Section 2.05(b),
first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans,
second, shall be applied ratably to the outstanding Revolving Credit Loans, and,
third, but only in the case of prepayments under clause (ii) above, shall be used to
Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the
Facility required pursuant to clause (i), (ii) or (iii) of this Section 2.05(b), the
amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line
Loans and Revolving Credit Loans outstanding at such time and, in the case of clause (ii)
above, the Cash Collateralization of the remaining L/C Obligations in full may be retained
by the Borrower for use in the ordinary course of its business. Upon the drawing of any
Letter of Credit that has been Cash Collateralized, the funds held in the Cash Collateral
Account



48









 






shall be applied (without any further action by or notice to or from the Borrower or
any other Loan Party) to reimburse the L/C Issuer or the Lenders, as applicable.



          2.06 Termination or Reduction of Commitments. (a) Optional. The Borrower may, upon
notice to the Administrative Agent, terminate the Commitments or the Swing Line Sublimit, or from
time to time permanently reduce the Commitments or the Swing Line Sublimit; provided, that
(i) any such notice shall be received by the Administrative Agent not later than 11:00 a.m. three
Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall
be in an aggregate amount of $1,000,000 or any whole multiple of $500,000 in excess thereof, (iii)
the Borrower shall not terminate or reduce the Aggregate Commitments if, after giving effect
thereto and to any concurrent prepayments hereunder, the Total Outstandings would exceed the
Aggregate Commitments, and (iv) if, after giving effect to any reduction of the Aggregate
Commitments, the Swing Line Sublimit exceeds the amount of the Aggregate Commitments, such Swing
Line Sublimit shall be automatically reduced by the amount of such excess. The Administrative
Agent will promptly notify the Lenders of any such notice of termination or reduction of the
Aggregate Commitments. Any reduction of the Aggregate Commitments shall be applied to the
Commitment of each Lender according to its Applicable Percentage. All fees accrued until the
effective date of any termination of the Aggregate Commitments shall be paid on the effective date
of such termination.




          (b) Mandatory. The Commitments shall be automatically and permanently reduced on each
date on which the prepayment of Revolving Credit Loans is required to be made under Section
2.05(b)(ii) by an amount equal to the amount of such prepayment.




          (c) Application of Commitment Reductions; Payment of Fees. The Administrative Agent
will promptly notify the Lenders of any termination or reduction of the Swing Line Sublimit or the
Commitment under this Section 2.06. Upon any reduction of the Commitments, the Commitment
of each Lender shall be reduced by such Lender’s Applicable Percentage of such reduction amount.
All fees in respect of the Facility accrued until the effective date of any termination of the
Facility shall be paid on the effective date of such termination.




          2.07 Repayment of Loans.




          (a) Revolving Credit Loans. The Borrower shall repay to the Lenders on the Maturity
Date (or, if sooner, the date on which such principal becomes due and payable pursuant to
Section 8.02) the aggregate principal amount of all Revolving Credit Loans outstanding on
such date.




          (b) Swing Line Loans. The Borrower shall repay each Swing Line Loan on the earlier to
occur of (i) the date ten Business Days after such Loan is made and (ii) the Maturity Date.




          2.08 Interest. (a) Subject to the provisions of Section 2.08(b), (i) each
Eurocurrency Rate Loan shall bear interest on the outstanding principal amount thereof for each
Interest Period at a rate per annum equal to the Eurocurrency Rate for such Interest Period
plus the Applicable Rate; (ii) each Base Rate Loan shall bear interest on the outstanding
principal





49









 







amount thereof from the applicable borrowing date at a rate per annum equal to the Base
Rate plus the Applicable Rate; and (iii) each Swing Line Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal
to the BBA LIBOR Daily Floating Rate plus the Applicable Rate.




          (b) (i) If any amount of principal or interest of any Loan (or any other Obligations) is not
paid when due (without regard to any applicable grace periods), whether at stated maturity, by
acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest
rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable
Laws.





          (ii) Upon the request of the Required Lenders, while any Event of Default exists, the
Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder
at a fluctuating interest rate per annum at all times equal to the Default Rate to the
fullest extent permitted by applicable Laws.




          (iii) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.



          (c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest hereunder shall be
due and payable in accordance with the terms hereof before and after judgment, and before and after
the commencement of any proceeding under any Debtor Relief Law.




          2.09 Fees. In addition to certain fees described in Sections 2.03(i) and (j):




          (a) Commitment Fee. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage, a commitment fee equal to the
Applicable Rate times the actual daily amount by which the Aggregate Commitments of all
Lenders exceed the sum of (i) the Outstanding Amount of Revolving Credit Loans (excluding any
Outstanding Amount of Swing Line Loans) and (ii) the Outstanding Amount of L/C Obligations,
determined as of the last day of the immediately preceding fiscal quarter. The commitment fee
shall accrue at all times during the Availability Period, including at any time during which one or
more of the conditions in Article IV is not met, and shall be due and payable quarterly in
arrears on the last Business Day of each March, June, September and December, commencing with the
first such date to occur after the Restatement Date, and on the Maturity Date (or, if sooner, the
date on which the Obligations become due and payable pursuant to Section 8.02).




          (b) Upfront Fee. The Borrower shall pay to the Administrative Agent, for the account
of each Lender in accordance with its Applicable Percentage on the Restatement Date, an upfront fee
equal to 1.25% times each Lender’s Commitment on the Restatement Date. The upfront fee shall be due
and payable on the Restatement Date.




          (c) Other Fees. The Borrower shall pay to each Arranger and the Administrative Agent
for their own respective accounts fees in the amounts and at the times





50









 







specified in the Fee
Letters. Such fees shall be fully earned when paid and shall not be refundable for any reason
whatsoever.




          2.10
Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate. (a) All
computations of interest for Base Rate Loans shall be made on the basis of a year of 365 or 366
days, as the case may be, and actual days elapsed. All other computations of fees and interest
shall be made on the basis of a 360-day year and actual days elapsed. Interest shall accrue on
each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion
thereof, for the day on which the Loan or such portion is paid, provided, that any Loan
that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear
interest for one day. Each determination by the Administrative Agent of an interest rate or fee
hereunder shall be conclusive and binding for all purposes, absent manifest error.




          (b) If, as a result of any restatement of or other adjustment to the financial statements of
the Borrower or for any other reason, the Borrower or the Lenders determine that (i) the
Consolidated Net Leverage Ratio as calculated by the Borrower as of any applicable date was
inaccurate and (ii) a proper calculation of the Consolidated Net Leverage Ratio would have resulted
in higher pricing for such period, the Borrower shall immediately and retroactively be obligated to
pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by
the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for
relief with respect to the Borrower under the Bankruptcy Code of the United States, automatically
and without further action by the Administrative Agent, any Lender or the L/C Issuer), an amount
equal to the excess of the amount of interest and fees that should have been paid for such period
over the amount of interest and fees actually paid for such period. This paragraph shall not limit
the rights of the Administrative Agent, any Lender or the L/C Issuer, as the case may be, under
Section 2.03(c)(iii), 2.03(i) or 2.08(b) or under Article VIII.
The Borrower’s obligations under this paragraph shall survive the termination of the Aggregate
Commitments and the repayment of all other Obligations hereunder.




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




          (b) In addition to the accounts and records referred to in Section 2.11(a), each
Lender and the Administrative Agent shall maintain in accordance with its usual practice




51









 







accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit
and Swing Line Loans. In the event of any conflict between the accounts and records maintained by
the Administrative Agent and the accounts and records of any Lender in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of manifest error.




          2.12
Payments Generally; Administrative Agent’s Clawback. (a) General. All payments
to be made by the Borrower shall be made without condition or deduction for any counterclaim,
defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the
Borrower hereunder shall be made to the Administrative Agent, for the account of the respective
Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in
immediately available funds not later than 2:00 p.m. on the date specified herein. The
Administrative Agent will promptly distribute to each Lender its Applicable Percentage in respect
of the Facility (or other applicable share as provided herein) of such payment in like funds as
received by wire transfer to such Lender’s Lending Office. All payments received by the
Administrative Agent after 2:00 p.m. shall be deemed received on the next succeeding Business Day
and any applicable interest or fee shall continue to accrue. If any payment to be made by the
Borrower shall come due on a day other than a Business Day, payment shall be made on the next
following Business Day, and such extension of time shall be reflected in computing interest or
fees, as the case may be.




          (b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of any
Borrowing of Eurocurrency Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to
12:00 noon on the date of such Borrowing) that such Lender will not make available to the
Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume
that such Lender has made such share available on such date in accordance with Section 2.02
(or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available
in accordance with and at the time required by Section 2.02) and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable Borrowing available to the Administrative Agent, then
the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith
on demand such corresponding amount in immediately available funds with interest thereon, for each
day from and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such
Lender, the Overnight Rate, plus any administrative, processing or similar fees customarily charged
by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to
be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such
Lender shall pay such interest to the Administrative Agent for the same or an overlapping period,
the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by
the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the
Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such
Borrowing. Any payment by the Borrower shall be without prejudice to any claim the
Borrower may have against a Lender that shall have failed to make such payment to the
Administrative Agent.




52









 









          (ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the date on which
any payment is due to the Administrative Agent for the account of the Lenders or the L/C
Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case
may be, the amount due. In such event, if the Borrower has not in fact made such payment,
then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such Lender or the
L/C Issuer, in immediately available funds with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of payment to
the Administrative Agent, at the Overnight Rate.



          A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount
owing under this Section 2.12(b) shall be conclusive, absent manifest error.




          (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender to the Borrower as provided in
the foregoing provisions of this Article II, and such funds are not made available to the
Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set
forth in Article IV are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall promptly return such funds (in like funds as received from such Lender)
to such Lender, without interest.




          (d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Revolving Credit Loans, to fund participations in Letters of Credit and Swing Line Loans and to
make payments pursuant to Section 10.04(c) are several and not joint. The failure of any
Lender to make any Revolving Credit Loan, to fund any such participation or to make any payment
under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of
its corresponding obligation to do so on such date, and no Lender shall be responsible for the
failure of any other Lender to so make its Revolving Credit Loan, to purchase its participation or
to make its payment under Section 10.04(c).




          (e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any particular place or
manner.




          2.13 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff
or counterclaim or otherwise, obtain payment in respect of (a) Obligations due and payable to such
Lender hereunder and under the other Loan Documents at such time in excess of its ratable share
(according to the proportion of (i) the amount of such Obligations due and payable to such Lender
at such time to (ii) the aggregate amount of the Obligations due and
payable to all Lenders hereunder and under the other Loan Documents at such time) of payments
on account of the Obligations due and payable to all Lenders hereunder and under the other Loan
Documents at such time obtained by all the Lenders at such time or (b) Obligations owing (but




53









 







not due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess
of its ratable share (according to the proportion of (i) the amount of such Obligations owing (but
not due and payable) to such Lender at such time to (ii) the aggregate amount of the Obligations
owing (but not due and payable) to all Lenders hereunder and under the other Loan Parties at such
time) of payment on account of the Obligations owing (but not due and payable) to all Lenders
hereunder and under the other Loan Documents at such time obtained by all of the Lenders at such
time then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of
such fact, and (b) purchase (for cash at face value) participations in the Revolving Credit Loans
and subparticipations in L/C Obligations and Swing Line Loans of the other Lenders, or make such
other adjustments as shall be equitable, so that the benefit of all such payments shall be shared
by the Lenders ratably in accordance with the aggregate amount of Obligations then due and payable
to the Lenders or owing (but not due and payable) to the Lenders, as the case may be,
provided, that:





          (i) if any such participations or subparticipations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the extent of such
recovery, without interest; and




          (ii) the provisions of this Section shall not be construed to apply to (A) any payment
made by the Borrower pursuant to and in accordance with the express terms of this Agreement,
(B) any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Revolving Credit Loans or subparticipations in L/C Obligations
or Swing Line Loans to any assignee or participant, other than to the Borrower or any
Subsidiary thereof (as to which the provisions of this Section shall apply), or (C) any
payments pursuant to the Fee Letter.



          The Borrower consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.




          2.14
 Increase in Facility. (a) Request for Increase. Provided there exists no
Default, upon notice to the Administrative Agent (which shall promptly notify the Lenders), the
Borrower may from time to time request an increase in the Facility by an amount (for all such
requests) not to exceed $125,000,000 more than the aggregate principal amount of the Facility on
the Restatement Date, subject to approval by the Administrative Agent (such approval not to be
unreasonably withheld or delayed); provided, that any such request for an increase shall be
in a minimum amount of $10,000,000, or such lower amount as determined by the Administrative Agent
in its sole discretion. At the time of sending such notice, the Borrower (in consultation with the
Administrative Agent) shall specify the time period within which each Lender is requested to
respond (which shall in no event be less than ten Business Days from the date of delivery of such
notice to the Lenders).




          (b) Lender Elections to Increase. Each Lender shall notify the Administrative Agent
within such time period whether or not it agrees to increase its Commitment and, if so,





54









 







whether by an amount equal to, greater than, or less than its Applicable Percentage of such requested
increase. Any Lender not responding within such time period shall be deemed to have declined to
increase its Commitment.




          (c) Notification by Administrative Agent; Additional Lenders. The Administrative
Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made
hereunder. To achieve the full amount of a requested increase, and subject to the approval of the
Administrative Agent, the L/C Issuer and the Swing Line Lender (which approvals shall not be
unreasonably withheld), the Borrower may also invite additional Eligible Assignees to become
Lenders pursuant to a joinder agreement in form and substance reasonably satisfactory to the
Administrative Agent and its counsel.




          (d) Effective Date and Allocations. If the Facility is increased in accordance with
this Section, the Administrative Agent and the Borrower shall determine the effective date (the
“Increase Effective Date”) and the final allocation of such increase. The Administrative
Agent shall promptly notify the Borrower and the Lenders of the final allocation of such increase
and the Increase Effective Date.




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




          (f) Conflicting Provisions. This Section shall supersede any conflicting provisions
in Sections 2.13 or 10.01.




ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY




          3.01 Taxes. (a) Payments Free of Taxes. Any and all payments by or on behalf of the
Borrower hereunder or under any other Loan Document shall be made free and clear of and without
reduction or withholding for any Indemnified Taxes or Other Taxes, provided, that if the
Borrower or other Person making payments on behalf of the Borrower shall
be required by applicable law to deduct any Indemnified Taxes or Other Taxes from such
payments, then (i) the sum payable shall be increased as necessary so that after making all




55









 







required deductions including deductions applicable to additional sums payable under this
Section 3.01(a) (after payment of all Indemnified Taxes and Other Taxes) the Administrative
Agent, any Lender or the L/C Issuer, as the case may be, receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall make such deductions
and (iii) the Borrower shall timely pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.




          (b) Payment of Other Taxes by the Borrower. Without limiting the provisions of
Section 3.01(a) above, the Borrower shall timely pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.




          (c) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent, each Lender and the L/C Issuer, within 30 days after demand therefor, for the full amount of
any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or the L/C Issuer or any of their respective Affiliates, as the case may be, and
any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether
or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. A certificate as to the amount of such payment or liability
delivered to the Borrower by a Lender or the L/C Issuer (with a copy to the Administrative Agent),
or by the Administrative Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall
be conclusive absent manifest error.




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




          (e) Status of Lenders. Each Lender that is a “U.S. Person” as defined in section
7701(a)(30) of the Code that has not otherwise established to the reasonable satisfaction of the
Borrower and Administrative Agent (or, in the case of a Participant purchasing its participation
from a Foreign Lender, to the Lender from which the related participation shall have been
purchased) that it is an exempt recipient (as defined in section 6049(b)(4) of the Code and the
regulations thereunder) shall deliver to the Borrower and Administrative Agent on or prior to the
date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter
as prescribed by applicable law or upon the reasonable request of the Borrower or Administrative
Agent), two duly completed and executed copies of Internal Revenue Service Form W-9.




Any Foreign Lender shall deliver to the Borrower and the Administrative Agent on or prior to the
date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the request of the Borrower or the Administrative Agent, but only if such Foreign
Lender is legally entitled to do so), two copies of whichever of the following is applicable or any
subsequent version thereof or successor thereto:





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     (i) duly completed and executed copies of Internal Revenue Service Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the United States is a
party,




     (ii) duly completed and executed copies of Internal Revenue Service Form W-8ECI
relating to all payments to be received by such Foreign Lender hereunder or under any other
Loan Document,




     (iii) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (A) a certificate to the effect that
such Foreign Lender is not (1) a “bank” within the meaning of section 881(c)(3)(A) of the
Code, (2) a “10 percent shareholder” of the Borrower within the meaning of section
881(c)(3)(B) of the Code, or (3) a “controlled foreign corporation” described in section
881(c)(3)(C) of the Code and (B) duly completed copies of Internal Revenue Service Form
W-8BEN, or




     (iv) any other form prescribed by applicable law as a basis for claiming exemption from
or a reduction in United States Federal withholding tax duly completed and executed together
with such supplementary documentation as may be prescribed by applicable law to permit the
Borrower to determine the withholding or deduction required to be made.


In the event that, pursuant to Section 10.06(d), a Participant is claiming the benefits of
this Section 3.01, such Participant shall provide the forms required above to the Lender
from which the related participation was purchased, and if such Lender is a Foreign Lender, such
Lender shall, promptly upon receipt thereof (but in no event later than the next scheduled payment
under this Agreement) forward such documentation to the Borrower and the Administrative Agent,
together with such additional forms as are required by law.



Without limiting the obligations of the Lenders set forth above regarding delivery of certain forms
and documents to establish each Lender’s status for U.S. withholding tax purposes, each Lender
agrees promptly to deliver to the Administrative Agent or the Borrower, as the Administrative Agent
or the Borrower shall reasonably request, on or prior to the Effective Date, and in a timely
fashion thereafter (including upon the expiration or obsolescence of any such forms or documents
and promptly after the occurrence of any event requiring a change from the most recent forms
previously delivered), such other documents and forms as would reduce or avoid any Indemnified
Taxes in respect of all payments to be made to such Lender outside of the U.S. by the Borrower
pursuant to this Agreement or otherwise to establish such Lender’s status for withholding tax
purposes in such other jurisdiction; provided, that in such Lender’s reasonable judgment
such documentation or forms would not materially prejudice such Lender. Each Lender shall promptly
notify the Administrative Agent of any change in circumstances which would modify or render invalid
any such claimed exemption or reduction. Notwithstanding any other provision of this Section
3.01(e), a Lender shall not be required to deliver any form, document or other information
pursuant to this Section 3.01(e) that such Lender is not legally able to deliver.






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          (f) Treatment of Certain Refunds. If the Administrative Agent, any Lender or the L/C
Issuer receives a refund with respect to Indemnified Taxes or Other Taxes paid by the Borrower,
which in the sole discretion and good faith judgment of such Administrative Agent, Lender or L/C
Issuer is allocable to such payment, it shall promptly pay such refund (but only to the extent of
the Indemnified Taxes or Other Taxes paid by the Borrower giving rise to such refund) to the
Borrower, net of all out-of-pocket expenses of such Administrative Agent, the Lender or the L/C
Issuer incurred in obtaining such refund (including any Taxes imposed with respect to such refund)
as is determined by such Administrative Agent, Lender or L/C Issuer in good faith and in its sole
discretion, and as will leave such Administrative Agent, Lender or L/C Issuer in no worse position
than it would be in if no such Indemnified Taxes or Other Taxes had been imposed and without
interest (other than any interest paid by the relevant Governmental Authority with respect to such
refund); provided, however, that the Borrower agrees to promptly return such amount
(plus any penalties, interest or other charges imposed by the relevant Governmental Authority), net
of any reasonable incremental additional costs, to the applicable Administrative Agent, the Lender
or the L/C Issuer, as the case may be, if it receives notice from the applicable Administrative
Agent, Lender or L/C Issuer that such Administrative Agent, the Lender or the L/C Issuer is
required to repay such refund. This subsection shall not be construed to require the
Administrative Agent, any Lender or the L/C Issuer to make available its tax returns (or any other
information relating to its taxes that it deems confidential) to the Borrower or any other Person.




          3.02 Illegality. If any Lender determines that as a result of any Change in Law it
becomes unlawful, or that any Governmental Authority asserts that it is unlawful, for any Lender or
its applicable Lending Office to make, maintain or fund Eurocurrency Rate Loans, or to determine or
charge interest rates based upon the Eurocurrency Rate, or any Governmental Authority has imposed
material restrictions on the authority of such Lender to purchase or sell, or to take deposits of,
Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower
through the Administrative Agent, any obligation of such Lender to make or continue Eurocurrency
Rate Loans or to convert Base Rate Loans to Eurocurrency Rate Loans, shall be suspended until such
Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to
such determination no longer exist. Upon receipt of such notice, the Borrower shall, upon demand
from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all
such Eurocurrency Rate Loans of such Lender to Base Rate Loans, either on the last day of the
Interest Period therefor, if such Lender may lawfully continue to maintain such Eurocurrency Rate
Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such
Eurocurrency Rate Loans. Upon any such prepayment or conversion, the Borrower shall also pay
accrued interest on the amount so prepaid or converted.




          3.03 Inability to Determine Rates. If the Required Lenders determine that for any
reason in connection with any request for a Eurocurrency Rate Loan or a conversion to or
continuation thereof that (a) adequate and reasonable means do not exist for determining the
Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate
Loan, or (b) the Eurocurrency Rate for any requested Interest Period with respect to a proposed
Eurocurrency Rate Loan does not
adequately and fairly reflect the cost to such Lenders of funding such Eurocurrency Rate Loan,
the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, the
obligation of the Lenders to make or maintain




58









 




Eurocurrency Rate Loans shall be suspended until the
Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon
receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion
to or continuation of Eurocurrency Rate Loans or, failing that, will be deemed to have converted
such request into a request for a Borrowing of Base Rate Loans in the amount specified therein.




          3.04 Increased Costs; Reserves on Eurocurrency Rate Loans. (a) Increased Costs
Generally. If any Change in Law shall:





     (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except any reserve requirement
reflected in the Eurocurrency Rate contemplated by Section 3.04(e)) or the L/C
Issuer; or




     (ii) impose on any Lender or the L/C Issuer or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurocurrency Rate Loans made by such
Lender or any Letter of Credit or participation therein;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurocurrency Rate Loan (or of maintaining its obligation to make any such Loan), or
to increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining
any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer
hereunder (whether of principal, interest or any other amount) then, upon written request of such
Lender or the L/C Issuer, the Borrower will pay to such Lender or the L/C Issuer, as the case may
be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case
may be, for such additional costs incurred or reduction suffered; provided, that before
making any such demand, each Lender agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions and so long as such efforts would not be
disadvantageous to it, in its reasonable discretion, in any legal, economic or regulatory manner)
to designate a different Eurocurrency Rate lending office if the making of such designation would
allow the Lender or its Eurocurrency Rate lending office to continue to perform its obligation to
make Eurocurrency Rate Loans or to continue to fund or maintain Eurocurrency Rate Loans and avoid
the need for, or reduce the amount of, such increased cost.




          (b) Capital Requirements. If any Lender or the L/C Issuer determines that any Change
in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such
Lender’s or the L/C Issuer’s holding company, if any, regarding capital requirements has the effect
of reducing the rate of return on such Lender’s or the L/C Issuer’s capital or on the capital of
such Lender’s or the L/C Issuer’s holding company, if any, as a consequence of this Agreement, the
Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by,
such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below
that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company
could have achieved but for such Change in Law (taking into consideration such Lender’s or the L/C
Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s holding company with
respect to capital adequacy), then from time to time, after submission to the Borrower (with a




59









 







copy
to the Administrative Agent) of a written request therefor, the Borrower will pay to such Lender or
the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such
Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company for any such
reduction suffered.




          (c) Certificates for Reimbursement. A certificate of a Lender or the L/C Issuer
setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its
holding company, as the case may be, as specified in subsection (a) or (b) of this Section,
describing the basis therefore and showing the calculation thereof in reasonable detail, and
delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such
Lender or the L/C Issuer, as the case may be, the amount shown as due on any such certificate
within 30 days after receipt thereof.




          (d) Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer
to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a
waiver of such Lender’s or the L/C Issuer’s right to demand such compensation, provided,
that the Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant to the
foregoing provisions of this Section for any increased costs incurred or reductions suffered more
than 90-days prior to the date that such Lender or the L/C Issuer, as the case may be, notifies the
Borrower of the Change in Law giving rise to such increased costs or reductions and of such
Lender’s or the L/C Issuer’s intention to claim compensation therefor (except that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then the 90-day period
referred to above shall be extended to include the period of retroactive effect thereof).




          (e) Additional Reserve Requirements. The Borrower shall pay to each Lender, (i) as
long as such Lender shall be required to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency
liabilities”), additional interest on the unpaid principal amount of each Eurocurrency Rate Loan
equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by
such Lender in good faith, which determination shall be conclusive absent manifest error), and (ii)
as long as such Lender shall be required to comply with any reserve ratio requirement or analogous
requirement of any other central banking or financial regulatory authority imposed in respect of
the maintenance of the Commitments or the funding of the Eurocurrency Rate Loans, such additional
costs (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five
decimal places) equal to the actual costs allocated to such Commitment or Loan by such Lender (as
determined by such Lender in good faith, which determination shall be conclusive absent manifest
error), which in each case shall be due and payable on each date on which interest is payable on
such Loan, provided the Borrower shall have received at least 10 Business Days’ prior
notice (with a copy to the Administrative Agent) of such additional interest or costs from such
Lender describing the basis therefor and showing the calculation thereof in reasonable detail. If
a Lender fails to give notice 10 Business Days prior to the relevant Interest Payment Date, such
additional interest or costs shall be due and payable within 30 days from receipt of such notice.




          3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrower shall promptly compensate such




60









 







Lender for and
hold such Lender harmless from any loss, cost or expense incurred by it as a result of:





     (a) any conversion, payment or prepayment of any Eurocurrency Rate Loan, and any
conversion of a Base Rate Loan to a Eurocurrency Rate Loan, on a day other than the last day
of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise);




     (b) any failure by the Borrower (for a reason other than the failure of such Lender to
make a Loan) to prepay, borrow, or continue any Eurocurrency Rate Loan, or to convert a Base
Rate Loan to a Eurocurrency Rate Loan, on the date or in the amount notified by the
Borrower; or




     (c) any assignment of a Eurocurrency Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrower pursuant to Section
10.13;


including any loss or expense arising from the liquidation or reemployment of funds obtained by it
to maintain such Loan or from fees payable to terminate the deposits from which such funds were
obtained, but excluding any loss of anticipated profits. The Borrower shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.



For purposes of calculating amounts payable by the Borrower to the Lenders under this Section
3.05, each Lender shall be deemed to have funded each Eurocurrency Rate Loan made by it at the
Eurocurrency Rate for such Loan by a matching deposit or other borrowing in the London interbank
eurodollar market for a comparable amount and for a comparable period, whether or not such
Eurocurrency Rate Loan was in fact so funded.




          3.06 Mitigation Obligations; Replacement of Lenders. (a) Designation of a
Different Lending Office. If any Lender requests compensation under Section 3.04, or
the Borrower is required to pay any additional amount to any Lender or any Governmental Authority
for the account of any Lender pursuant to Section 3.01, or if any Lender gives a notice
pursuant to Section 3.02, then such Lender shall use reasonable efforts to designate a
different Lending Office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of
such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need
for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not
subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous
to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by
any Lender in connection with any such designation or assignment.




          (b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, if any
Lender gives a notice pursuant to Section 3.02 or if any Lender is at such time a
Defaulting Lender, then the Borrower may replace such Lender in accordance with Section
10.13.




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          3.07 Survival. All of the Borrower’s obligations under this Article III shall
survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder.




ARTICLE IV

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




          4.01 Conditions of Initial Credit Extension. The amendment and restatement of the
Original Credit Agreement is subject to satisfaction of the following conditions precedent:





     (a) The Administrative Agent’s receipt of the following, each of which shall be
originals or telecopies (followed promptly by originals) unless otherwise specified, each
properly executed by a duly authorized officer of the signing Loan Party, each dated the
Restatement Date (or, in the case of certificates of governmental officials, a recent date
before the Restatement Date) and each in form and substance reasonably satisfactory to the
Administrative Agent:




     (i) executed counterparts of this Agreement and a Lender Addendum executed and
delivered by each Lender and accepted by the Borrower;




     (ii) Notes executed by the Borrower in favor of each Lender requesting Notes;




     (iii) proper financing statements and/or amendments in form appropriate for
filing under the Uniform Commercial Code of all jurisdictions that the
Administrative Agent may deem necessary in order to maintain perfection of the Liens
created under the Security Agreement, covering the Collateral described in the
Security Agreement;




     (iv) evidence that all other actions that the Administrative Agent may deem
necessary in order to perfect the Liens created under the Security Agreement have
been taken;




     (v) such certificates of resolutions or other action, incumbency certificates
and/or other certificates of duly authorized officers of each Loan Party as the
Administrative Agent may reasonably require evidencing the identity, authority and
capacity of each officer of a Loan Party executing the Loan Documents to which such
Loan Party is a party;




     (vi) such documents and certifications as the Administrative Agent may
reasonably require to evidence that each Loan Party is duly organized or
formed, and that each Loan Party is validly existing, in good standing and
qualified to engage in business in each jurisdiction where its ownership, lease or
operation of properties or the conduct of its business requires such qualification,
except to the extent that failure to do so could not reasonably be expected to have
a Material Adverse Effect;



62









 






     (vii) the executed opinion of Davis Polk & Wardwell LLP, counsel to the
Borrower and special New York counsel to the other Loan Parties, addressed to the
Administrative Agent and each Lender, as to the matters set forth in Exhibit
H and such other matters concerning the Loan Parties and the Loan Documents as
the Administrative Agent may reasonably request;




     (viii) the executed opinion of Joseph W. Bean, Esq., special Missouri counsel
to the Borrower and in-house counsel to the other Loan Parties, addressed to the
Administrative Agent and each Lender, as to the matters set forth in Exhibit
I;




     (ix) a certificate of a duly authorized officer of each Loan Party (i) either
(A) attaching copies of all consents, licenses and approvals required in connection
with the execution, delivery and performance by such Loan Party and the validity
against such Loan Party of the Loan Documents to which it is a party, and such
consents, licenses and approvals shall be in full force and effect, or (B) stating
that no such consents, licenses or approvals are so required; and (ii) stating that
all consents, licenses and approvals required in connection with the consummation of
such Loan Party of the Transaction has been received;




     (x) a certificate signed by a Responsible Officer of the Borrower certifying
(A) that the conditions specified in Sections 4.02(a) and (b) have
been satisfied, and (B) that there has not occurred since December 31, 2009, a
material adverse change in the business, assets, operations, property or condition
(financial or otherwise) of the Borrower and its Subsidiaries, taken as a whole;




     (xi) certificates attesting to the Solvency of the Borrower and its
Subsidiaries on a consolidated basis before and after giving effect to the
Transaction, from its chief financial officer;




     (xii) evidence that all insurance required to be maintained pursuant to
Section 6.07 has been obtained and is in effect, together with the
certificates of insurance, naming the Administrative Agent, on behalf of the
Lenders, as an additional insured or loss payee, as the case may be, under all
insurance policies maintained with respect to the assets and properties of the Loan
Parties that constitutes Collateral;




     (xiii) an executed confirmation of the Subsidiary Guarantors (the “Consent
of Guarantors”) in form and substance reasonably satisfactory to the
Administrative Agent; and




     (xiv) such other assurances, certificates and documents as the Administrative
Agent reasonably may require.



          (b) The Borrower shall have received, simultaneously with the occurrence of the
Restatement Date (upon the satisfaction or waiver of each other condition set forth in this
Section 4.01), gross cash proceeds of not less than $150,000,000 and not greater
than $300,000,000 from the issuance of the Senior Notes. The Senior Notes and the Senior




63









 









Notes Indenture shall be on terms substantially similar in all material respects to those
set forth in the description of Senior Notes provided to the Lenders prior to the
Restatement Date or otherwise reasonably satisfactory to the Required Lenders. The
Administrative Agent shall have received a copy of the Senior Notes Indenture, certified by
a Responsible Officer as being complete and correct.




     (c) Any fees required to be paid on or before the Restatement Date to the
Administrative Agent, any Arranger or the Lenders (i) pursuant to the Fee Letters or (ii)
otherwise for which invoices have been received at least one Business Day prior to the
Restatement Date shall have been paid and the Administrative Agent shall have received an
executed original of the Banc of America Securities Fee Letter.




     (d) Any principal, interest, letter of credit fees and breakage costs required to be
paid on or before the Restatement Date to any lender under the Original Credit Agreement
who, as of the effectiveness of this Agreement shall no longer be a lender, for which
invoices have been received shall have been paid.




     (e) Unless waived by the Administrative Agent, the Borrower shall have paid all
reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly
to such counsel if requested by the Administrative Agent) to the extent invoiced at least
one Business Day prior to the Restatement Date, plus such additional amounts of such fees,
charges and disbursements as shall constitute its reasonable estimate of such fees, charges
and disbursements incurred or to be incurred by it through the closing and customary
post-closing proceedings included in such invoices (provided, that such estimate
shall not thereafter preclude a final settling of accounts between the Borrower and the
Administrative Agent).


Without limiting the generality of the provisions of the last paragraph of Section 9.03,
for purposes of determining compliance with the conditions specified in this Section 4.01,
each Lender that has signed this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Restatement Date specifying its
objection thereto.




     4.02 Conditions to all Credit Extensions. The obligation of each Lender to honor any
Request for Credit Extension (other than a Borrowing Notice requesting only a conversion of Loans
to the other Type, or a continuation of Eurocurrency Rate Loans) is subject to the following
conditions precedent:




     (a) The representations and warranties of (i) the Borrower contained in Article
V and (ii) each Loan Party contained in each other Loan Document, or which are contained
in any document furnished at any time under or in connection herewith or therewith, shall be
true and correct in all material respects on and as of the date of such Credit Extension,
except to the extent that such representations and warranties specifically refer to an
earlier date, in which case they shall be true and correct in all material respects as of
such earlier date, and except that for purposes of this Section 4.02, the
representations and



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warranties contained in Sections 5.05(a) and (b) shall
be deemed to refer to the most recent statements furnished pursuant to Sections
6.01(a) and (b), respectively.





     (b) No Default shall exist, or would result from such proposed Credit Extension or from
the application of the proceeds thereof.




     (c) The Administrative Agent and, if applicable, the L/C Issuer or the Swing Line
Lender shall have received a Request for Credit Extension in accordance with the
requirements hereof.



          Each Request for Credit Extension (other than a Borrowing Notice requesting only a conversion
of Loans to the other Type or a continuation of Eurocurrency Rate Loans) submitted by the Borrower
shall be deemed to be a representation and warranty that the conditions specified in Sections
4.02(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension.




ARTICLE V

REPRESENTATIONS AND WARRANTIES




          The Borrower represents and warrants to the Administrative Agent and the Lenders that:




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




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




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          5.03 Governmental Authorization; Other Consents. (a) No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority and (b)
no material approval, consent, exemption, authorization, or other action by, or notice to, or
filing with any other Person, in each case, is necessary or required in connection with (i) the
execution, delivery or performance by any Loan Party of this Agreement or any other Loan Document
or Related Document, or for the consummation of the Transaction, (ii) the grant by any Loan Party
of the Liens granted by it pursuant to the Collateral Documents or (iii) the perfection of the
Liens created under the Collateral Documents (including the first priority nature thereof), (x)
except for those approvals, consents, exemptions, authorizations or other actions which have
already been obtained, taken, given or made and are in full force and effect, (y) any filings
required to perfect the Liens created under the Collateral Documents and (z) those landlord
consents required with respect to the leasehold mortgages required to be delivered hereunder. All
applicable waiting periods in connection with the Transaction have expired without any action
having been taken by any Governmental Authority restraining, preventing or imposing materially
adverse conditions upon the Transaction or the rights of the Loan Parties or their Subsidiaries
freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or
hereafter acquired by any of them.




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




          5.05 Financial Statements; No Material Adverse Effect. (a) The Audited Financial
Statements of the Borrower and its Subsidiaries (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly noted
therein; (ii) fairly present in all material respects the financial condition of the Borrower and
its Subsidiaries as of the date thereof and their results of operations for the period covered
thereby in accordance with GAAP consistently applied throughout the period covered thereby, except
as otherwise expressly noted therein; and (iii)
show all material indebtedness and other material liabilities, direct or contingent, of the
Borrower and its Subsidiaries as of the date thereof, including material liabilities for Taxes,
material commitments and material Indebtedness.




          (b) The unaudited consolidated balance sheet of the Borrower and its Subsidiaries dated March
31, 2010, and the related consolidated statements of income or operations, shareholders’ equity and
cash flows for the fiscal quarter ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly noted
therein, and (ii) fairly present in all material respects the financial condition of the Borrower
and its Subsidiaries as of the date thereof and their results of operations for the period covered
thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal
year-end audit adjustments.





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          (c) Since December 31, 2009, there has been no event or circumstance, either individually or
in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.




          (d) The consolidated pro forma balance sheet of the Borrower and its Subsidiaries as at March
31, 2010, and the related consolidated pro forma statements of income and cash flows of the
Borrower and its Subsidiaries for the six months then ended, certified by the chief financial
officer or treasurer of the Borrower, copies of which have been furnished to the Administrative
Agent, fairly present in all material respects the consolidated pro forma financial condition of
the Borrower and its Subsidiaries as at such date and the consolidated pro forma results of
operations of the Borrower and its Subsidiaries for the period ended on such date, in each case
giving effect to the Transaction, all in accordance with GAAP.




          (e) The consolidated forecasted balance sheet and statements of income and cash flows of the
Borrower and its Subsidiaries delivered pursuant to Section 4.01 or Section 6.01(d)
were prepared in good faith on the basis of the assumptions stated therein, which assumptions were
believed to be reasonable in light of the conditions existing at the time of delivery of such
forecasts.




          5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending
or, to the knowledge of the Borrower, threatened, at law, in equity, in arbitration or before any
Governmental Authority, by or against the Borrower or any of its Subsidiaries or against any of
their properties or revenues that (a) purport to affect or pertain to this Agreement, any other
Loan Document, any Related Document or the consummation of the Transaction, or (b) except as
specifically disclosed in public filings prior to the date hereof, as to which there is a
reasonable possibility of an adverse determination and that could reasonably be expected to have a
Material Adverse Effect.




          5.07 No Default. Neither the Borrower nor any Subsidiary is in default under or with
respect to any Contractual Obligation that could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. No Default has occurred and is
continuing or would
result from the consummation of the transactions contemplated by this Agreement or any other
Loan Document.




          5.08 Ownership of Property; Liens; Investments. (a) The Borrower and each of its
Subsidiaries has good record title to, or valid leasehold, easement or other sufficient real
property interests in, all real property necessary or used in the ordinary conduct of its business,
except for such defects in title as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.




          (b) Subject to the exceptions listed thereon, Schedule 7.01 sets forth a complete and
accurate list as of the Restatement Date of all Liens (other than any Liens permitted under
Sections 7.01(g) or (l)) on the property or assets of the Borrower and each of its
Subsidiaries, showing as of the date hereof the lienholder thereof, the principal amount of the
obligations secured thereby and the property or assets of the Borrower or such Subsidiary subject
thereto.




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          (c) Schedule 5.08(c) sets forth a complete and accurate list as of the Restatement
Date of the locations of all mines owned or leased by the Borrower or any of its Subsidiaries.




          (d) To the best knowledge of the Borrower, the legal description attached as Exhibit A to each
Mortgage accurately and completely describes the Mortgaged Property intended to be covered thereby.




          (e) Schedule 7.03 sets forth a complete and accurate list as of the Restatement Date
of all Investments held by the Borrower and any of its Subsidiaries on the date hereof, showing as
of the date hereof the amount, obligor or issuer and maturity, if any, thereof.




          5.09 Environmental Compliance. Except as disclosed in the Borrower’s most recent
annual, quarterly or other reports filed with the SEC or on Schedule 5.09, or as otherwise
could not reasonably be expected to have a Material Adverse Effect:




          (a) The facilities and properties currently or formerly owned, leased or operated by the
Borrower or any of its Subsidiaries (the “Properties”) do not contain, and have not
previously contained, any Hazardous Materials in amounts or concentrations which (i) constitute or
constituted a violation of, or (ii) could reasonably be expected to give rise to liability under,
any applicable Environmental Law.




          (b) None of the Borrower nor any of its Subsidiaries has received any notice of violation,
alleged violation, non-compliance, liability or potential liability regarding environmental matters
or compliance with Environmental Laws with regard to any of the Properties or the business operated
by the Borrower or any of its Subsidiaries (the “Business”), or any prior business for
which the Borrower has retained liability under any Environmental Law.




          (c) Hazardous Materials have not been transported or disposed of from the Properties in
violation of, or in a manner or to a location which could reasonably be expected to give rise to
liability under, any applicable Environmental Law, nor have any Hazardous Materials been generated,
treated, stored or disposed of at, on or under any of the Properties in violation of, or in a
manner that could reasonably be expected to give rise to liability under, any applicable
Environmental Law.




          (d) No judicial proceeding or governmental or administrative action is pending or, to the
knowledge of the Borrower, threatened under any Environmental Law to which the Borrower or any of
its Subsidiaries is or, to the knowledge of the Borrower, will be named as a party or with respect
to the Properties or the Business, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other similar administrative or judicial
requirements outstanding under any Environmental Law with respect to the Properties or the
Business.




          (e) There has been no release or threat of release of Hazardous Materials at or from the
Properties, or arising from or related to the operations of the Borrower or any of its Subsidiaries
in connection with the Properties or otherwise in connection with the Business, in




68









 







violation of or
in amounts or in a manner that could reasonably be expected to give rise to liability under any
applicable Environmental Laws.




          (f) The Properties and all operations at the Properties are in compliance in all material
respects with all applicable Environmental Laws.




          (g) The Borrower and each of its Subsidiaries (i) hold all Environmental Permits (each of
which is in full force and effect and is not subject to appeal, except in such instances where the
requirement to hold an Environmental Permit is being contested in good faith by the Borrower or any
of its Subsidiaries by appropriate proceedings diligently conducted) required for any of their
current operations or for the current ownership, operation or use of the Properties, including all
Environmental Permits required for the coal mining-related operations of the Borrower or any of its
Subsidiaries or, to the extent currently required, any pending construction or expansion related
thereto; (ii) are, or have been, in compliance with all Environmental Permits, except in such
instances where the requirement of an Environmental Permit is being contested in good faith by the
Borrower or any of its Subsidiaries by appropriate proceedings diligently conducted; and (iii) have
used commercially reasonable efforts to cause all contractors, lessees and other Persons occupying,
operating or using the mines on the Properties to comply with all Environmental Laws and obtain all
Environmental Permits required for the operation of the mines.




          (h) To the knowledge of the Borrower, none of the Properties have any associated direct or
indirect acid mine drainage which (i) constitutes or constituted a violation of, or (ii) could
reasonably be expected to give rise to liability under, any applicable Environmental Law.




          5.10 Mining.




          (a) The Borrower and each of its Subsidiaries has, in the amounts and forms required pursuant
to Environmental Law, obtained all performance bonds and surety bonds, or otherwise provided any
financial assurance required under Environmental Law for Reclamation or otherwise (collectively,
“Mining Financial Assurances”), except as could not reasonably be expected to result in a Material
Adverse Effect.




          (b) There have been no accidents, explosions, implosions, collapses or flooding at or
otherwise related to the Properties that have, directly or indirectly, resulted in, or could
reasonably be expected to result in, a Material Adverse Effect.




          5.11 Insurance. The properties of the Borrower and its Subsidiaries are insured with
financially sound and reputable insurance companies which may be Affiliates of the Borrower, in
such amounts (after giving effect to any self-insurance compatible with the following standards),
with such deductibles and covering such risks as are customarily carried by companies engaged in
similar businesses and owning similar properties in localities where the Borrower or the applicable
Subsidiary operates.




          5.12 Taxes. The Borrower and its Subsidiaries have filed all Federal, state and other
tax returns and reports required to be filed, and have paid all Federal, state and other Taxes,
assessments, fees and other governmental charges levied or imposed upon them or their




69









 







properties,
income or assets otherwise due and payable (other than those which are being contested in good
faith by appropriate proceedings diligently conducted and for which adequate reserves have been
provided in accordance with GAAP), except where the failure to do any of the foregoing could not
reasonably be expected to result in a Material Adverse Effect; no material tax Lien has been filed
and, to the knowledge of the Borrower, no material claim is being asserted or audit being
conducted, with respect to any material Tax, fee or other charge of the Borrower or any of its
Subsidiaries. There is no proposed tax assessment against the Borrower or any Subsidiary that
would, reasonably be likely to have a Material Adverse Effect. Neither any Loan Party nor any
Subsidiary thereof is party to any tax sharing agreement, other than the Tax Separation Agreement.




          5.13 ERISA Compliance. (a) Except as could not reasonably be expected, individually
or in the aggregate, to have a Material Adverse Effect, each Plan is in compliance in all material
respects with the applicable provisions of ERISA, the Code and other Federal or state Laws (except
that with respect to any Multiemployer Plan which is a Plan, such representation is deemed made
only to the knowledge of the Borrower). With respect to each Plan, no failure to satisfy the
minimum funding standards of Sections 412 or 430 of the Code has occurred, and no application for
a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has
been made.




          (b) There are no pending or, to the knowledge of the Borrower, threatened claims, actions or
lawsuits, or action by any Governmental Authority, with respect to any Plan
that could reasonably be expected to have a Material Adverse Effect. There has been no
nonexempt “prohibited transaction” (as defined in Section 406 of ERISA) or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be
expected to result in a Material Adverse Effect.




          (c) Except as could not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect: (i) No ERISA Event has occurred or is reasonably expected to occur; (ii)
no Pension Plan has any Unfunded Pension Liability; (iii) neither the Borrower nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with
respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of
ERISA); (iv) neither the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability (and no event has occurred which, with the giving of notice under Section 4219
of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with respect to a
Multiemployer Plan; and (v) neither the Borrower nor any ERISA Affiliate has engaged in a
transaction that could be subject to Section 4069 or 4212(c) of ERISA.




          5.14 Subsidiaries; Equity Interests; Loan Parties. As of the Restatement Date, the
Borrower has no Subsidiaries other than those specifically disclosed in Schedule 5.14, and
all of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully
paid and non-assessable and are owned by each Person in the percentages specified on Schedule
5.14 free and clear of all Liens except those created under the Collateral Documents or
permitted by this Agreement and the other Loan Documents. Schedule 5.14 indicates which
subsidiaries are Loan Parties as of the Restatement Date showing (as to each Loan Party) the
jurisdiction of its incorporation, the address of its principal place of business and its U.S.
taxpayer identification




70









 







number or, in the case of any non-U.S. Loan Party that does not have a U.S.
taxpayer identification number, its unique identification number issued to it by the jurisdiction
of its incorporation.




          5.15 Margin Regulations; Investment Company Act. (a) The Borrower is not engaged and
will not engage, principally or as one of its important activities, in the business of purchasing
or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending
credit for the purpose of purchasing or carrying margin stock. Following the application of the
proceeds of each Borrowing or drawing under each Letter of Credit, not more than 25% of the value
of the assets (either of the Borrower only or of the Borrower and its Subsidiaries on a
consolidated basis) subject to the provisions of Section 7.01, Section 7.04 or
Section 7.05 or subject to any restriction contained in any agreement or instrument between
the Borrower and any Lender or any Affiliate of any Lender relating to Indebtedness and within the
scope of Section 8.01(e) will be margin stock.




          (b) None of the Borrower, any Person Controlling the Borrower, or any Subsidiary is or is
required to be registered as an “investment company” under the Investment Company Act of 1940.




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




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




          5.18 Intellectual Property; Licenses, Etc. The Borrower and each of its Subsidiaries
own, or possess the right to use, all of the trademarks, service marks, trade names, copyrights,
patents, patent rights, franchises, licenses and other intellectual property rights (collectively,
“IP Rights”) that are reasonably necessary for the operation of their respective




71









 







businesses, except where the failure to own or possess the right to use such IP Rights could not
reasonably be expected to have a Material Adverse Effect. To the best knowledge of the Borrower,
the use of such IP Rights by the Borrower or any Subsidiary does not infringe upon any rights held
by any other Person, except for any infringement that could not reasonably be expected to have a
Material Adverse Effect. Except as specifically disclosed in Schedule 5.18, no claim or
litigation regarding any of the foregoing is pending or, to the best knowledge of the Borrower,
threatened, which, either individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.




          5.19 Solvency. (a) As of the Restatement Date, after giving effect to the
Transaction on such date, the Borrower is together with its Subsidiaries on a consolidated basis,
Solvent.




          (b) The Borrower does not intend to, and does not believe that it or any of its Subsidiaries
will, incur debts beyond its ability to pay such debts as they mature, taking into account the
timing and amounts of cash to be received by it or any such Subsidiary and the
timing and amounts of cash to be payable on or in respect of its Indebtedness or the
Indebtedness of any such Subsidiary.




          5.20 Casualty, Etc. Neither the businesses nor the properties of the Borrower or any
of its Subsidiaries have been affected by any fire, explosion, accident, strike, lockout or other
labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or
other casualty (whether or not covered by insurance) that, either individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.




          5.21 Labor Matters. Except as specifically disclosed on Schedule 5.21, there
are no collective bargaining agreements or Multiemployer Plans covering the employees of the
Borrower or any of its Subsidiaries as of the Restatement Date. (a) As of the Restatement Date,
neither the Borrower nor any Subsidiary has suffered any strikes, walkouts, work stoppages or other
material labor difficulty within the last five years, and (b) since the Restatement Date, neither
the Borrower nor any subsidiary has suffered any strikes, walkouts, work stoppages or other
material labor difficulty that could reasonably be expected to result in a Material Adverse Effect.




          5.22 Collateral Documents. The provisions of the Collateral Documents are effective
to create in favor of the Administrative Agent for the benefit of the Secured Parties a legal,
valid and enforceable Lien on all right, title and interest of the Collateral owned by the Loan
Parties and described therein. Except for filings contemplated hereby and by the Collateral
Documents, no filing or other action will be necessary to perfect such Liens.




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




          5.24 Coal Act; Black Lung Act.




          (a) The Borrower, each of its Subsidiaries and its “related persons” (as defined in the Coal
Act) are in compliance in all material respects with the Coal Act and any regulations promulgated
thereunder, and none of the Borrower, its Subsidiaries or its “related




72









 







persons” (as defined in the
Coal Act) has any liability under the Coal Act, except as disclosed in the Borrower’s financial
statements or which could reasonably be expected to have a Material Adverse Effect or with respect
to premiums or other material payments required thereunder which have been paid when due.




          (b) The Borrower and each of its Subsidiaries are in compliance in all material respects with
the Black Lung Act, and neither the Borrower nor any of its Subsidiaries has either incurred any
Black Lung Liability or assumed any other Black Lung Liability, except as disclosed in the
Borrower’s financial statements or which could reasonably be expected to have a
Material Adverse Effect or with respect to premiums, contributions or other material payments
required thereunder which have been paid when due.




          5.25 Activities and Liabilities of EACC Camps, Inc. EACC Camps, Inc., a West Virginia
corporation, owns no material assets, material Indebtedness or other material liabilities, direct
or contingent, including material liabilities for Taxes and material commitments, and conducts no
material business or operations.




ARTICLE VI

AFFIRMATIVE COVENANTS




          So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied (other than in respect of contingent obligations,
indemnities and expenses related thereto not then payable or in existence as of the later of the
Maturity Date or the Letter of Credit Expiration Date), or any Letter of Credit shall remain
outstanding, the Borrower shall, and shall (except in the case of the covenants set forth in
Sections 6.01 and 6.02 (a) — (g)) cause each Subsidiary to:




          6.01 Financial Statements. Deliver to the Administrative Agent and each Lender, in
form and detail reasonably satisfactory to the Administrative Agent:





     (a) as soon as available, but in any event within 90 days after the end of each fiscal
year of the Borrower (commencing with the fiscal year ended December 31, 2009), a
consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal
year, and the related consolidated statements of income or operations, changes in
shareholders’ equity and cash flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable detail and
prepared in accordance with GAAP, such consolidated statements to be audited and accompanied
by a report and opinion of an independent certified public accountant of nationally
recognized standing, which report and opinion shall be prepared in accordance with generally
accepted auditing standards and shall not be subject to any “going concern” or like
qualification or exception or any qualification or exception as to the scope of such audit;
and




     (b) as soon as available, but in any event within 45 days after the end of each of the
first three fiscal quarters of each fiscal year of the Borrower (commencing with the fiscal
quarter ended March 31, 2010), a consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such fiscal quarter, and the related consolidated



73









 




statements
of income or operations, changes in shareholders’ equity and cash flows for such fiscal
quarter and for the portion of the Borrower’s fiscal year then ended, setting forth in each
case in comparative form the figures for the corresponding fiscal quarter of the previous
fiscal year and the corresponding portion of the previous fiscal year, all in reasonable
detail, such consolidated statements to be certified by a Responsible Officer of the
Borrower as fairly presenting in all material respects the financial condition, results of
operations, changes in shareholders’ equity and cash flows of the Borrower and its
Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments
and the absence of footnotes.



As to any information contained in materials furnished pursuant to Section 6.02(d), the
Borrower shall not be separately required to furnish such information under Section 6.01(a)
or (b) above, but the foregoing shall not be in derogation of the obligation of the
Borrower to furnish the information and materials described in Sections 6.01(a) and
(b) above at the times specified therein.




          6.02 Certificates; Other Information. Deliver to the Administrative Agent, in form
and detail reasonably satisfactory to the Administrative Agent:





     (a) concurrently with the delivery of the financial statements referred to in
Section 6.01(a), a certificate of its independent certified public accountants
reporting on such financial statements and stating that in performing their audit nothing
came to their attention that caused them to believe the Borrower failed to comply with the
financial covenants set forth in Section 7.11, except as specified in such
certificate;




     (b) concurrently with the delivery of the financial statements referred to in
Sections 6.01(a) and (b) (commencing with the delivery of the financial
statements for the fiscal quarter ended March 31, 2010), a duly completed Compliance
Certificate signed by a Responsible Officer of the Borrower, which shall include detailed
computations of the financial covenants;




     (c) promptly after any request by the Administrative Agent, copies of any detailed
audit reports, management letters or recommendations submitted to the board of directors (or
the audit committee of the board of directors) of any Loan Party by independent accountants
in connection with the accounts or books of the Borrower or any of its Subsidiaries, or any
audit of any of them;




     (d) promptly after the same are available, copies of each annual report, proxy or
financial statement or other report or communication sent to the stockholders of the
Borrower, and copies of all annual, regular, periodic and special reports and registration
statements which the Borrower may file or be required to file with the SEC under Section 13
or 15(d) of the Securities Exchange Act of 1934, or with any national securities exchange,
and in any case not otherwise required to be delivered to the Administrative Agent pursuant
hereto;




     (e) unless otherwise required to be delivered to the Lenders hereunder, promptly after
the furnishing thereof, copies of any statement or report furnished to any holder of



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debt
securities of any Loan Party or of any of its Subsidiaries pursuant to the terms of any
indenture or similar agreement and not otherwise required to be furnished to the Lenders
pursuant to Section 6.01 or any other clause of this Section 6.02;





     (f) as soon as available, but in any event prior to the date audited financial
statements are required to be delivered, a report summarizing the insurance coverage
(specifying type, amount and carrier) in effect for each Loan Party and its
Subsidiaries and containing such additional information as the Administrative Agent, or any
Lender through the Administrative Agent, may reasonably specify;




     (g) promptly, and in any event within five Business Days after receipt thereof by the
Borrower or any Subsidiary, copies of each material notice or other correspondence received
from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any
material investigation or possible material investigation or other material inquiry by such
agency regarding financial or other operational results of the Borrower or any Subsidiary;




     (h) unless otherwise required to be delivered to the Lenders hereunder, not later than
ten days after receipt thereof by the Borrower or any Subsidiary, copies of all notices of
default, non-compliance or any other material matters (excluding those delivered pursuant to
the relevant agreement in the ordinary course of business), material requests and other
material documents (including amendments, waivers and other modifications) so received under
or pursuant to any Related Document and, from time to time upon request by the
Administrative Agent, such other information and reports regarding the Related Documents as
the Administrative Agent may reasonably request;




     (i) as soon as available, but in any event within the time period in which the Borrower
must deliver its annual audited financials under Section 6.01(a), a report supplementing
Schedule 5.08(c), identifying all Material Owned Real Property and Material Leased
Real Property acquired or disposed of by any Loan Party during such fiscal year;




     (j) promptly, such additional information regarding the business, financial, legal or
corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the
Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably
request;




     (k) not later than 90 days after the end of each fiscal year of the Borrower, a copy of
summary projections by the Borrower of the operating budget and cash flow budget of the
Borrower and its Subsidiaries for the succeeding fiscal year, such projections to be
accompanied by a certificate of a Responsible Officer to the effect that such projections
have been prepared based on assumptions believed by the Borrower to be reasonable.



          Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(b) or (d) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed
to have been




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delivered on the date (i) on which the Borrower posts such documents, or provides a
link thereto on the Borrower’s website on the Internet at the website address listed on
Schedule 10.02; (ii) on which such documents are posted on the Borrower’s behalf on an
Internet or intranet website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by the Administrative Agent); or
(iii) on which such documents are filed for public availability of the SEC’s Electronic Data
Gathering and Retrieval
system; provided, that the Borrower shall notify the Administrative Agent and each
Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft copies) of the
documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(a) or (b). The Administrative Agent shall have no obligation to request the
delivery or to maintain copies of the documents referred to above, and in any event shall have no
responsibility to monitor compliance by the Borrower with any such request for delivery, and each
Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such
documents.




          The Borrower hereby acknowledges that (a) the Administrative Agent and/or any Arranger will
make available to the Lenders and the L/C Issuer materials and/or information provided by or on
behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the
Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and
(b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive
material non-public information with respect to the Borrower or its securities) (each, a
“Public Lender”). The Borrower hereby agrees that so long as the Borrower is the issuer of
any outstanding debt or equity securities that are registered or issued pursuant to a private
offering or is actively contemplating issuing any such securities (w) all Borrower Materials that
are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC”
which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page
thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have
authorized the Administrative Agent, any Arranger, the L/C Issuer and the Lenders to treat the
Borrower Materials as not containing any material non-public information with respect to the
Borrower or its securities for purposes of United States Federal and state securities laws
(provided, however, that to the extent the Borrower Materials constitute
Information, they shall be treated as set forth in Section 10.07); (y) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform
designated “Public Investor;” and (z) the Administrative Agent and any Arranger shall be entitled
to treat the Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on
a portion of the Platform not designated “Public Investor.” Notwithstanding the foregoing, the
Borrower shall not be under any obligation to mark the Borrower Materials “PUBLIC.” In connection
with the foregoing, each party hereto acknowledges and agrees that the foregoing provisions are not
in derogation of their confidentiality obligations under Section 10.07.




          6.03 Notices. Notify the Administrative Agent:




          (a) promptly, of the occurrence of any Default or Event of Default;




          (b) promptly, of any event which could reasonably be expected to have a Material
Adverse Effect;




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     (c) of the occurrence of any ERISA Event that, individually, or in the aggregate, would
be reasonably likely to have a Material Adverse Effect, as soon as possible and in any
event within 30 days after the Borrower knows or has obtained notice thereof;




     (d) of any material change in accounting policies or financial reporting practices by
any Loan Party or any Subsidiary thereof, including any determination by the Borrower
referred to in Section 2.10(b);




     (e) promptly after receipt of notice or knowledge of the Borrower thereof, of any
action, suit, proceeding or claim alleging any Environmental Liability against or by the
Borrower or any of its Subsidiaries that could reasonably be expected to have a Material
Adverse Effect;




     (f) promptly after receipt of notice or knowledge of the Borrower thereof, of any
accidents, explosions, implosions, collapses or flooding at or otherwise related to the
Properties that result in (i) any fatality or (ii) the trapping of any Person in any mine
for more than twenty-four hours; and




     (g) promptly after receipt of notice or knowledge of the Borrower thereof, of the
issuance of any closure order pursuant to any Environmental Law or pursuant to any
Environmental Permit that could reasonably be expected to directly or indirectly result in
the closure or cessation of operation of any mine for a period of more than 5 consecutive
days.



          Each notice pursuant to this Section shall be accompanied by a statement of a Responsible Officer of the Borrower
setting forth details of the occurrence referred to therein and stating what action the Borrower has taken and proposes
to take with respect thereto.




          6.04 Payment of Obligations
Pay and discharge as the same shall become due and payable (a) all Tax liabilities,
assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in
good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained
by the Borrower or such Subsidiary, except where failure to do so could not reasonably be expected to result in a Material Adverse Effect;
(b) all lawful claims which, if unpaid, would by law become a Lien upon any material portion of the Collateral; and (c) all Indebtedness, as and
when due and payable, but subject to any subordination provisions contained in any instrument or agreement evidencing such Indebtedness, except
where failure to do so could not reasonably be expected to result in a Material Adverse Effect.




          6.05 Preservation of Existence, Etc.
With respect to the Borrower and each of its Subsidiaries, (a) preserve, renew and
maintain in full force and effect its legal existence and good standing under the Laws of the jurisdiction of its organization except
in a transaction permitted by Section 7.04 or 7.05; (b) take all reasonable action to maintain all rights, privileges, permits, licenses
and franchises necessary for the normal conduct of its business, except to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect; and (c) preserve or renew all of its registered patents, trademarks, trade names and
service marks, the non-preservation of which could reasonably be expected to have a Material Adverse Effect.





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          6.06 Maintenance of Properties. With respect to the Borrower and each of its
Subsidiaries, maintain, preserve and protect all of its material properties and equipment necessary
in the operation of its business in good working order and condition (ordinary wear and tear and
damage by fire or other casualty or taking by condemnation excepted); except where the failure to
do so could not reasonably be expected to have a Material Adverse Effect.



          6.07 Maintenance of Insurance. Maintain with financially sound and reputable insurance
companies which may be Affiliates of the Borrower, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by Persons engaged in the
same or similar business, of such types and in such amounts (after giving effect to any
self-insurance compatible with the following standards) as are customarily carried by companies
engaged in similar businesses and owning similar properties in localities where the Borrower or the
applicable Subsidiary operates, except to the extent the failure to do so could not reasonably be
expected to have a Material Adverse Effect. Without limiting the generality of the foregoing, the
Borrower and its Subsidiaries will maintain or cause to be maintained (a) flood insurance with
respect to each Flood Hazard Property that is located in a community that participates in the
National Flood Insurance Program, in each case in compliance with any applicable regulations of the
Board of Governors of the Federal Reserve System, (b) liability insurance, (c) business
interruption insurance, and (d) replacement value casualty insurance on the Collateral under such
policies of insurance, with such insurance companies, in such amounts, with such deductibles, and
covering such risks as would be carried or maintained under similar circumstances by Persons of
established reputation engaged in similar businesses. Each such policy of insurance shall (i) name
the Administrative Agent, on behalf of Secured Parties, as an additional insured thereunder as its
interests may appear, (ii) in the case of each casualty insurance policy, contain a loss payable
clause or endorsement, reasonably satisfactory in form and substance to the Administrative Agent,
that names the Administrative Agent, on behalf of the Secured Parties, as the loss payee thereunder
and provide for at least thirty days’ prior written notice to the Administrative Agent of any
modification or cancellation of such policy.



          6.08 Compliance with Laws. Comply in all material respects with the requirements of
all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or
property, except in such instances in which (a) such requirement of Law or order, writ, injunction
or decree is being contested in good faith by the Borrower or any of its Subsidiaries by
appropriate proceedings diligently conducted; (b) the failure to comply therewith, in addition to
the risk thereof, is disclosed in the Borrower’s most recent annual, quarterly or other reports
filed with the SEC or on Schedule 6.08, or (c) the failure to comply therewith could not
reasonably be expected to have a Material Adverse Effect.



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



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          6.10 Inspection Rights. Permit representatives and independent contractors of the
Administrative Agent and each Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or abstracts therefrom (except
to the extent (i) any such access is restricted by a Requirement of Law or (ii) any such
agreements, contracts or the like are subject to a written confidentiality agreement with a
non-Affiliate that prohibits the Borrower or any of its Subsidiaries from granting such access to
the Administrative Agent or the Lenders; provided, that with respect to such
confidentiality restrictions affecting the Borrower or any of its Subsidiaries, a Responsible
Officer is made available to such Lender to discuss such confidential information to the extent
permitted), and to discuss the business, finances and accounts with its officers and independent
public accountants at such reasonable times during normal business hours and as often as may be
reasonably desired, provided, that the Administrative Agent or such Lender shall give
Borrower reasonable advance notice prior to any contact with such accountants and give the Borrower
the opportunity to participate in such discussions.



          6.11 Use of Proceeds. Use the proceeds of the Credit Extensions for working capital,
capital expenditures and other general corporate purposes.



          6.12 Covenant to Guarantee Obligations and Give Security. (a) Upon the formation or
acquisition of any new direct or indirect Guarantor Subsidiary by any Loan Party, then the Borrower
shall, at the Borrower’s expense:




     (i) within 30 days after such formation or acquisition, cause such Guarantor
Subsidiary, to duly execute and deliver to the Administrative Agent a counterpart of the
Subsidiary Guaranty, guaranteeing the other Loan Parties’ obligations under the Loan
Documents;




     (ii) within 30 days after such formation or acquisition, furnish to the Administrative
Agent a description any Material Owned Real Property and Material Owned Leased Property of
such Guarantor Subsidiary, in detail reasonably satisfactory to the Administrative Agent;




     (iii) (A) cause such Guarantor Subsidiary to duly execute and deliver to the
Administrative Agent within 90 days after such formation or acquisition, deeds of trust,
trust deeds, deeds to secure debt and/or mortgages covering Material Owned Real Property of
such Guarantor Subsidiary, (B) cause such Guarantor Subsidiary to duly execute and deliver
to the Administrative Agent within 120 days after such formation or acquisition, leasehold
mortgages or leasehold deeds of trust with respect to all Material Leased Real Property of
such Guarantor Subsidiary where the terms of the lease of such Material Leased Property (or
applicable state law, if such lease is silent on the issue) do not prohibit a mortgage
thereof, (C) cause such Guarantor Subsidiary to use commercially reasonable efforts to duly
execute and deliver to the Administrative Agent within 120 days after such formation or
acquisition, leasehold mortgages or leasehold deeds of trust with respect to all Material Leased Real Property of such Guarantor
Subsidiary where the terms of the lease of such Material Leased Property (or applicable
state law, if such lease is silent on the issue) prohibit a mortgage thereof;
provided, that the Borrower shall use commercially reasonable efforts to deliver
estoppel and consent



79









 







agreements executed by the lessors of such Material Leased Real
Property; provided, further, that the Borrower shall (x) deliver the initial
requested form of consent to the lessor within 30 days after such formation or acquisition
and (y) initiate communications with the lessors on the status of all such consents within
60 days after such formation or acquisition; provided, however, that if any
consent has not been executed and returned to the Administrative Agent in a form reasonably
satisfactory to the Administrative Agent within 90 days after such formation or acquisition,
then the Administrative Agent shall determine in its reasonable discretion whether such
Subsidiary Guarantor has satisfied its obligations hereunder or whether such Subsidiary
Guarantor’s obligations hereunder shall be extended for an additional period of time to be
determined by the Administrative Agent, and (D) cause such Guarantor Subsidiary to duly
execute and deliver to the Administrative Agent within 60 days after such formation or
acquisition, supplements to the Security Agreement, supplements to the Intellectual Property
Security Agreements and other security and pledge agreements, in all such cases, as
specified by and in form and substance reasonably satisfactory to the Administrative Agent
(including delivery of all Pledged Equity Interests and Pledged Debt in and of such
Guarantor Subsidiary, and other instruments representing the Pledged Equity Interests in
certificated form accompanied by undated stock powers executed in blank or the Pledged Debt
indorsed in blank to the extent required by the Security Agreement), in all such cases to
the same extent that such documents and instruments would have been required to have been
delivered by Persons that were Guarantor Subsidiaries on the Restatement Date, securing
payment of all the Obligations of such Guarantor Subsidiary under the Loan Documents;




     (iv) (A) within 60 days after such formation or acquisition in the case of personal
property, (B) within 90 days after such formation or acquisition in the case of Material
Owned Real Property, and (C) within 120 days after such formation or acquisition in the case
of Material Leased Real Property, cause such Guarantor Subsidiary to take, or, in the case
of Material Leased Real Property where the terms of the lease of such Material Leased Real
Property (or applicable state law, if such lease is silent on the issue) prohibit a mortgage
thereof, cause such Guarantor Subsidiary to use commercially reasonable efforts to take,
whatever additional action (including the recording of mortgages, the filing of Uniform
Commercial Code financing statements, the giving of notices and the endorsement of notices
on title documents) may be necessary in the reasonable opinion of the Administrative Agent
to vest in the Administrative Agent (or in any representative of the Administrative Agent
designated by it) valid and subsisting Liens on the properties purported to be subject to
the deeds of trust, trust deeds, deeds to secure debt and/or mortgages, leasehold mortgages
or leasehold deeds of trust, supplements to the Security Agreement, supplements to the
Intellectual Property Security Agreements and security and pledge agreements delivered
pursuant to Section 6.12(a)(iii), enforceable against all third parties, in all such
cases to the same extent that such action would have been required to have been taken by Persons
that were Guarantor Subsidiaries on the Restatement Date;




     (v) deliver to the Administrative Agent, upon the request of the Administrative Agent
in its reasonable discretion, a signed copy of an opinion, addressed to the Administrative
Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable
to the Administrative Agent (A) as to the validity and



80









 







enforceability of the agreements entered into pursuant to clause (iii)(A) above, and as to such other related matters as the
Administrative Agent may reasonably request, within 90 days after such formation or
acquisition, (B) as to the validity and enforceability of the agreements entered into
pursuant to clause (iii)(B) and, to the extent a mortgage is filed thereon, (iii)(C) above,
and as to such other related matters as the Administrative Agent may reasonably request,
within 120 days after such formation or acquisition, and (C) as to the validity and
enforceability of the agreements entered into pursuant to clauses (i) and (iii)(D) above,
and as to such other related matters as the Administrative Agent may reasonably request,
within 60 days after such formation or acquisition; and




     (vi) (A) within 90 days after such formation or acquisition in the case of Material
Owned Real Property and (B) within 120 days after such formation or acquisition in the case
of Material Leased Real Property, cause such Guarantor Subsidiary to provide, or, in the
case of Material Leased Real Property where the terms of the lease of such Material Leased
Real Property (or applicable state law, if such lease is silent on the issue) prohibit a
mortgage thereof, cause such Guarantor Subsidiary to use commercially reasonable efforts to
provide, the Administrative Agent with a legal description of all Material Owned Real
Property and Material Leased Real Property, as applicable, from which any As-Extracted
Collateral (as defined in the Security Agreement) will be severed or to which As-Extracted
Collateral (as defined in the Security Agreement) otherwise relates, together with the name
of the record owner of such Material Owned Real Property or Material Leased Real Property,
as applicable, the county in which such Material Owned Real Property or Material Leased Real
Property, as applicable, is located and such other information as may be necessary or
desirable to file real property related financing statements, deeds of trust, trust deeds,
deeds to secure debt, mortgages, leasehold mortgages and/or leasehold deeds of trust under
Section 9-502(b) or 9-502(c) of the UCC or any similar legal requirements.



          (b) Upon the acquisition of any Material Owned Real Property or Material Leased Real Property
by any Loan Party other than pursuant to any acquisition covered by Section 6.12(a), the
Borrower shall, at the Borrower’s expense:





     (i) within 30 days after such acquisition, furnish to the Administrative Agent a
description of the property so acquired in detail reasonably satisfactory to the
Administrative Agent;




     (ii) (A) with respect to Material Owned Real Property, cause the applicable Loan Party
to duly execute and deliver to the Administrative Agent within 90 days after such
acquisition, deeds of trust, trust deeds, deeds to secure debt and/or mortgages, (B)
with respect to Material Leased Real Property where the terms of the lease of such
Material Leased Real Property (or applicable state law, if such lease is silent on the
issue) do not prohibit a mortgage thereof, cause the applicable Loan Party to duly execute
and deliver to the Administrative Agent within 120 days after such acquisition, leasehold
mortgages or leasehold deeds of trust, and (C) with respect to Material Leased Real Property
where the terms of the lease of such Material Leased Real Property (or applicable state law,
if such lease is silent on the issue) prohibit a mortgage thereof, cause the applicable Loan
Party to use commercially reasonable efforts to duly execute and



81









 







deliver to the Administrative Agent within 120 days after such acquisition, leasehold mortgages or
leasehold deeds of trust; provided, that the Borrower shall use commercially
reasonable efforts to deliver estoppel and consent agreements executed by the lessors of
such Material Leased Real Property; provided, further, that the Borrower
shall (x) deliver the initial requested form of consent to the lessor within 30 days after
such acquisition and (y) initiate communications with the lessors on the status of all such
consents within 60 days after such acquisition; provided, however, that if
any consent has not been executed and returned to the Administrative Agent in a form
reasonably satisfactory to the Administrative agent within 90 days after such acquisition,
then the Administrative Agent shall determine in its reasonable discretion whether such
Subsidiary Guarantor has satisfied its obligations hereunder or whether such Subsidiary
Guarantor’s obligations hereunder shall be extended for an additional period of time to be
determined by the Administrative Agent, in the case of clauses (A), (B) and (C), in form and
substance reasonably satisfactory to the Administrative Agent, securing payment of all the
Obligations of the applicable Loan Party under the Loan Documents;




     (iii) (A) within 90 days after such acquisition in the case of Material Owned Real
Property, and (B) within 120 days after such formation or acquisition in the case of
Material Leased Real Property, cause the applicable Loan Party to take, or, in the case of
Material Leased Real Property where the terms of the lease of such Material Leased Real
Property do not permit a mortgage thereof, cause such Loan Party to use commercially
reasonable efforts to take, whatever additional action (including the recording of mortgages
and the filing of Uniform Commercial Code financing statements) may be necessary in the
reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in
any representative of the Administrative Agent designated by it) valid and subsisting Liens
on such property, enforceable against all third parties;




     (iv) deliver to the Administrative Agent, upon the request of the Administrative Agent
in its reasonable discretion, a signed copy of an opinion, addressed to the Administrative
Agent and the other Secured Parties, of counsel for the Loan Parties acceptable to the
Administrative Agent (A) as to the validity and enforceability of the Collateral Documents
entered into pursuant to clause (ii)(A) above and as to such other related matters as the
Administrative Agent may reasonably request, within 90 days after such acquisition and (B)
as to the validity and enforceability of the Collateral Documents entered into pursuant to
clause (ii)(B) and, to the extent a mortgage is filed thereon, (ii)(B) above and as to such
other related matters as the Administrative Agent may reasonably request, within 120 days
after such acquisition; and




     (v) (A) within 90 days after such acquisition in the case of Material Owned Real
Property and (B) within 120 days after such acquisition in the case of Material Leased Real
Property, cause such Guarantor Subsidiary to provide, or, in the case of Material Leased
Real Property where the terms of the lease of such Material Leased Real Property (or
applicable state law, if such lease is silent on the issue) prohibit a mortgage thereof,
cause such Guarantor Subsidiary to use commercially reasonable efforts to provide, the
Administrative Agent with a legal description of all Material Owned Real Property and
Material Leased Real Property, as applicable, from which any As-Extracted Collateral (as
defined in the Security Agreement) will be severed or to which As-



82









 







Extracted Collateral (as defined in the Security Agreement) otherwise relates, together with the name of the record
owner of such Material Owned Real Property or Material Leased Real Property, as applicable,
the county in which such Material Owned Real Property or Material Leased Real Property, as
applicable, is located and such other information as may be necessary or desirable to file
real property related financing statements, deeds of trust, trust deeds, deeds to secure
debt, mortgages, leasehold mortgages and/or leasehold deeds of trust under Section 9-502(b)
or 9-502(c) of the UCC or any similar legal requirements.



          (c) Use commercially reasonable efforts to not enter into any lease prohibiting the granting
of any mortgage or other security interest thereon (and the exercise of remedies with respect
thereto), in each case to the Administrative Agent for the benefit of the Secured Parties, with
respect to any Material Leased Real Property acquired after the Restatement Date.




          The foregoing requirements of Section 6.12(a) and (b) shall not apply to (i)
those assets over which the granting of security interests in such assets would be prohibited by
contract, applicable law or regulation or, with respect to the assets of any non-wholly owned
subsidiary, the organizational documents of such non-wholly owned subsidiary, (ii) payroll, tax and
other trust accounts, and (iii) those assets as to which the Administrative Agent and the Borrower
reasonably determine that the cost of obtaining such security interest or perfection thereof are
excessive in relation to the benefit to the Lenders of the security to be afforded thereby.




          6.13 Compliance with Environmental Laws. (a) Comply, and use commercially reasonable
efforts to cause all lessees and other Persons operating or occupying its properties to comply, in
all material respects, with all applicable Environmental Laws and Environmental Permits and obtain,
to the extent necessary based on its current operations, and renew all Environmental Permits for
its operations and properties, except in such instances in which (i) the requirement of an
Environmental Permit is being contested in good faith by the Borrower or any of its Subsidiaries by
appropriate proceedings diligently conducted, (ii) the failure to so comply, obtain or renew, in
addition to the risk thereof, has been disclosed in the Borrower’s most recent annual, quarterly or
other reports filed with the SEC or on Schedule 6.13, or (iii) the failure to so comply,
obtain or renew could not reasonably be expected to have Material Adverse Effect; and (b) undertake
and perform any cleanup, removal, remedial or other action necessary to remove and clean up all
Hazardous Materials from any of its properties, in accordance with the requirements of all
Environmental Laws, except in such instances in which (i) the requirement to undertake or perform is being contested in good faith by the Borrower
or any of it Subsidiaries by appropriate proceedings diligently conducted, (ii) the failure to so
undertake or perform has been, in addition to the risk thereof, disclosed in the Borrower’s most
recent annual, quarterly or other reports filed with the SEC or on Schedule 6.13 or (iii)
the failure to so undertake or perform could not reasonably be expected to have a Material Adverse
Effect.




          6.14 Preparation of Environmental Reports. Not more often than once per Property
during the term of this Agreement (or more frequently during the continuance of an Event of
Default), at the reasonable request of the Administrative Agent, the Borrower shall provide to the
Lenders within 60 days after such request, at the expense of the Borrower, an environmental or
mining site assessment or audit report for any of its Properties described in



83









 







such request, prepared by an environmental or mining consulting firm reasonably acceptable to the Administrative
Agent the presence or absence of Hazardous Materials and information otherwise reasonably requested
by the Lenders.



          6.15 Further Assurances. Promptly upon request by the Administrative Agent, or any
Lender through the Administrative Agent, (a) correct any material defect or error that may be
discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof,
and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and
re-register any and all such further acts, deeds, certificates, assurances and other instruments as
the Administrative Agent, or any Lender through the Administrative Agent, may reasonably require
from time to time in order to (i) carry out more effectively the purposes of the Loan Documents,
(ii) to the fullest extent permitted by applicable law, subject the Borrower’s or any of its
Subsidiaries’ properties, assets, rights or interests to the Liens now or hereafter intended to be
covered by any of the Collateral Documents, and (iii) perfect and maintain the validity,
effectiveness and priority of any of the Collateral Documents and any of the Liens intended to be
created thereunder.




          6.16 Compliance with Terms of Leaseholds and Related Documents. (a) Make all
payments and otherwise perform all obligations in respect of all leases of real property to which
the Borrower or any of its Subsidiaries is a party, keep such leases in full force and effect and
not allow such leases to lapse or be terminated or any rights to renew such leases to be forfeited
or cancelled, except, in any case, where the failure to do so, either individually or in the
aggregate, could not be reasonably likely to have a Material Adverse Effect.




          (b) Make all payments and otherwise perform all obligations in respect of all Related
Documents, keep such Related Documents in full force and effect and not allow such Related
Documents to lapse or be terminated or any rights to renew such Related Documents to be forfeited
or cancelled, except, in any case, where the failure to do so, either individually or in the
aggregate, could not be reasonably likely to have a Material Adverse Effect.




          6.17 [Reserved].




          6.18 [Reserved].




          6.19 Certain Long Term Liabilities and Environmental Reserves. To the extent required
by GAAP, maintain adequate reserves for (i) future costs associated with any lung disease claim
alleging pneumoconiosis or silicosis or arising out of exposure or alleged exposure to coal dust or
the coal mining environment, (ii) future costs associated with retiree and health care benefits,
(iii) future costs associated with Reclamation of disturbed acreage, removal of facilities and
other closing costs in connection with its mining operations and (iv) future costs associated with
other potential Environmental Liabilities.




          6.20 Mining Financial Assurances. Maintain all material Mining Financial Assurances
to the extent required pursuant to any Environmental Law.




          6.21 Post-Closing Obligations. Perform the obligations set forth on Schedule
6.21, as and when set forth therein.





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ARTICLE VII

NEGATIVE COVENANTS




          So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied (other than in respect of contingent obligations,
indemnities and costs and expenses related thereto not then payable or in existence as of the later
of the Maturity Date or the Letter of Credit Expiration Date), or any Letter of Credit shall remain
outstanding, the Borrower shall not, nor shall it permit any Subsidiary to, directly or indirectly:




          7.01 Liens. Create, incur, assume or suffer to exist any Lien upon, or exception to
title to, any of its property, assets or revenues, whether now owned or hereafter acquired, or sign
or file under the Uniform Commercial Code of any jurisdiction a financing statement that names the
Borrower or any of its Subsidiaries as debtor, or assign any accounts or other right to receive
income, other than the following:





     (a) Liens pursuant to any Loan Document;




     (b) Liens on the property of the Borrower or any of its Subsidiaries existing on the
date hereof and listed on Schedule 7.01 and any refinancing, refunding, renewal or
extension thereof;




     (c) Liens for Taxes not yet due or which are being contested in good faith and by
appropriate proceedings, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP;




     (d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like
Liens arising in the ordinary course of business which are not overdue for a period of more
than 60 days or which are being contested in good faith and by appropriate proceedings, if
adequate reserves with respect thereto are maintained on the books of the applicable Person;




     (e) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance arrangements;




     (f) (i) deposits to secure the performance of bids, trade contracts and leases (other
than Indebtedness), reclamation bonds, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the ordinary course of
business and (ii) Liens on assets to secure obligations under surety bonds obtained as
required in connection with the entering into of new federal coal leases;




     (g) easements, covenants, conditions, rights-of-way, zoning restrictions, other
restrictions and other similar encumbrances which, in the aggregate, are not substantial in
amount, and which do not in any case materially detract from the value of the property
subject thereto or materially interfere with the ordinary conduct of the business of the
applicable Person;



85









 






     (h) Liens securing attachments or judgments for the payment of money not constituting
an Event of Default under Section 8.01(h) or securing appeal or surety bonds related
to such attachments or judgments;




     (i) Liens securing Indebtedness of the Borrower and its Subsidiaries permitted by
Section 7.02(e) incurred to finance the acquisition of fixed or capital assets;
provided, that (i) such Liens shall be created substantially simultaneously with the
acquisition of such fixed or capital assets, (ii) such Liens do not at any time encumber any
property other than the property financed by such Indebtedness (other than after-acquired
title in or on such property and proceeds of the existing collateral in accordance with the
instrument creating such Lien), (iii) the principal amount of Indebtedness secured by any
such Lien shall at no time exceed 100% of the original purchase price of such property at
the time it was acquired, and (iv) if the terms of such Indebtedness require any Lien
hereunder to be subordinated to such Liens, then the Lien hereunder shall be subordinated on
terms reasonably acceptable to the Administrative Agent;




     (j) Liens on the property or assets of a Person which becomes a Guarantor Subsidiary
after the date hereof securing Indebtedness permitted by Section 7.02 not to exceed
$25,000,000 at any time outstanding, provided, that (i) such Liens existed at the
time such entity became a Guarantor Subsidiary and were not created in anticipation
thereof, (ii) any such Lien is not expanded to cover any other property or assets of such
Person (other than the proceeds of the property or assets subject to such Lien) or of the
Borrower or any Guarantor Subsidiary, (iii) the amount of Indebtedness secured thereby is
not increased, and (iv) if the terms of such Indebtedness require any Lien hereunder to be
subordinated to such Liens, then the Lien hereunder shall be subordinated on terms
reasonably acceptable to the Administrative Agent;




     (k) Liens on the property of the Borrower or any of its Subsidiaries, as a tenant under
a lease or sublease entered into in the ordinary course of business by such Person, in favor
of the landlord under such lease or sublease, securing the tenant’s performance under such
lease or sublease, as such Liens are provided to the landlord under applicable law and not
waived by the landlord;




     (l) Liens arising from precautionary Uniform Commercial Code financing statement
filings with respect to operating leases or consignment arrangements entered into by the
Borrower or any of its Subsidiaries in the ordinary course of business;




     (m) Liens securing Refinancing Indebtedness, to the extent that the Indebtedness being
refinanced was originally secured in accordance with this Section 7.01,
provided, that such Lien does not apply to any additional property or assets of the
Borrower or any of its Subsidiaries (other than the proceeds of the property or assets
subject to such original Lien);




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



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     (o) leases, subleases, licenses and rights-of-use granted to others incurred in the
ordinary course of business and that do not materially and adversely affect the use of the
property encumbered thereby for its intended purpose;




     (p) Liens in favor of a banking institution arising by operation of law or any contract
encumbering deposits (including the right of set-off) held by such banking institutions
incurred in the ordinary course of business and which are within the general parameters
customary in the banking industry;




     (q) Liens on receivables and rights related to such receivables created pursuant to any
Permitted Securitization Programs (to the extent that any such Disposition of receivables is
deemed to give rise to a Lien);




     (r) Liens on assets of the Borrower and its Subsidiaries that are not Collateral with a
value (determined immediately prior to the incurrence of such Lien) in an aggregate amount
(at actual cost, without adjustment for subsequent increases or decreases in the value of
such asset) not in excess of $12,000,000 in the aggregate;




     (s) Liens in favor of an escrow agent arising under an escrow arrangement incurred in
connection with the issuance of notes with respect of the proceeds of such notes and
anticipated interest expenses with respect to such notes;




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




     (u) other defects and exceptions to title of real property where such defects or
exceptions could not be reasonably be expected to have a Material Adverse Effect.



          7.02 Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:





     (a) Indebtedness under the Loan Documents;




     (b) Indebtedness outstanding on the date hereof and listed on Schedule 7.02;




     (c) any refinancings, refundings, renewals or extensions of Indebtedness permitted
under Sections 7.02(b), 7.02(n) and7.02(o); provided, that (i) the
amount of such Indebtedness (the “Refinancing Indebtedness”) is not increased at the
time of such refinancing, refunding, renewal or extension except by an amount equal to a
reasonable premium or other reasonable amount paid, and fees and expenses reasonably
incurred, in connection with such refinancing and by an amount equal to any existing
commitments unutilized thereunder, (ii) the direct or any contingent obligor with respect
thereto is not changed, as a result of or in connection with such refinancing, refunding,
renewal or extension and (iii) the terms relating to principal amount, amortization,
maturity, collateral (if any) and subordination (if any), and other material terms taken as
a whole,



87









 







of any such refinancing, refunding, renewing or extending Indebtedness, and of any
agreement entered into and of any instrument issued in connection therewith, are no less
favorable in any material respect to the Loan Parties or the Lenders than the terms of any
agreement or instrument governing the Indebtedness being refinanced, refunded, renewed or
extended and the interest rate applicable to any such refinancing, refunding, renewing or
extending Indebtedness does not exceed the then applicable market interest rate (as
determined in good faith by the Borrower);




     (d) Guarantees of the Borrower or any of its Subsidiaries in respect of Indebtedness
otherwise permitted hereunder of the Borrower or any other Loan Party;




     (e) Indebtedness in respect of Capital Lease Obligations and purchase money obligations
for fixed or capital assets within the limitations set forth in Section 7.01(i);
provided, however, that the aggregate amount of all such Indebtedness at any
one time outstanding shall not exceed 1.0% of Tangible Assets of the Loan Parties;




     (f) Indebtedness in respect of Swap Contracts incurred in the ordinary course of
business for non speculative purposes and consistent with prudent business practice;




     (g) Indebtedness of the Borrower or any other Loan Party to any other Loan Party and of
any non-Loan Party Subsidiary to any Loan Party or any other non-Loan Party;
provided, that such Indebtedness must be subordinated to the Obligations on
customary terms;




     (h) Intercompany current liabilities incurred in the ordinary course of business of the
Borrower and its Subsidiaries;




     (i) Indebtedness incurred in connection with any Permitted Securitization Program and
Indebtedness of a Securitization Subsidiary arising as a consequence of any Standard
Securitization Undertakings in respect of any such Permitted Securitization Program,
collectively, in an aggregate principal amount not to exceed $125,000,000;




     (j) Indebtedness in respect of netting services, automatic clearinghouse arrangements,
overdraft protections and similar arrangements in each case in connection with deposit
accounts and in the ordinary course of business;




     (k) Indebtedness representing deferred or equity compensation to employees of the
Borrower or any of its Subsidiaries incurred in the ordinary course of business;




     (l) Indebtedness in an aggregate principal amount not to exceed 5% of Tangible Assets
of the Borrower and its Subsidiaries (other than any Securitization Subsidiary) at any time
outstanding; provided, that (i) the covenants and events of default of such
Indebtedness are, as a whole, no more restrictive to the obligors or the lenders thereon
than the Revolving Credit Loans and (ii) such Indebtedness shall not be Guaranteed by any
Subsidiary of the Borrower that is not a Subsidiary Guarantor hereunder;




     (m) Indebtedness in the form of bank guaranties, bid, performance, reclamation bonds,
statutory obligations, surety and appeal bonds, performance bonds and other



88









 







obligations of a
like nature incurred in the ordinary course of business, in an aggregate amount not to
exceed $400,000,000; provided that such Indebtedness described in this clause (m) is
not secured by any Lien other than a Lien on cash described in Section 7.01(f);




     (n) Indebtedness in respect of the Convertible Notes issued pursuant to the Convertible
Notes Indenture, in an aggregate principal amount not to exceed $200,000,000 at any time
outstanding; and




     (o) Indebtedness of the Borrower in respect of the Senior Notes, and any Guarantee of
the Borrower and certain Subsidiary Guarantors in respect thereof, issued pursuant to the
Senior Notes Indenture, in an aggregate principal amount not to exceed $300,000,000 at any
time outstanding.



          7.03 Investments. Make or hold any Investments, except:





     (a) Investments held by the Borrower or any of its Subsidiaries in the form of Cash
Equivalents;




     (b) advances to officers, directors and employees of the Borrower and Subsidiaries in
an aggregate amount not to exceed $500,000 at any time outstanding, for travel,
entertainment, relocation and analogous ordinary business purposes;




     (c) Investments consisting of extensions of credit in the nature of accounts receivable
or notes receivable arising from the grant of trade credit in the ordinary course of
business, and Investments received in satisfaction or partial satisfaction thereof from
financially troubled account debtors to the extent reasonably necessary in order to prevent
or limit loss;




     (d) Investments (including debt obligations and Equity Interests) received in
satisfaction of judgments or in connection with the bankruptcy or reorganization of
suppliers and customers of the Borrower and its Subsidiaries and in settlement of delinquent
obligations of, and other disputes with, such customers and suppliers arising in the
ordinary course of business;




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




     (f) Investments existing on the date hereof and set forth on Schedule 7.03 and
extensions, renewals, modifications, restatements or replacements thereof; provided,
that no such extension, renewal, modification or restatement shall increase the amount of
the original loan, advance or investment, except by an amount equal to any premium or other
reasonable amount paid in respect of the underlying obligations and fees and expenses
incurred in connection with such replacement, renewal or extension;



89









 






     (g) promissory notes and other similar non-cash consideration received by the Borrower
and its Subsidiaries in connection with Dispositions not otherwise prohibited under this
Agreement;




     (h) Investments in any assets constituting a business unit received by the Borrower or
its Subsidiaries by virtue of an asset exchange or swap with a third party or acquired as a
capital expenditure;




     (i) Swap Contracts permitted under Section 7.02(f);




     (j) Investments by the Borrower or its Subsidiaries in any Loan Party or entity that
becomes a Loan Party as a result of such Investment and Investments by any non-
Loan Party in any other non-Loan Party; provided, that if the Investment is in
the form of Indebtedness, such Indebtedness must be permitted pursuant to Section
7.02(g);




     (k) Permitted Acquisitions;




     (l) [Reserved]




     (m) Investments by the Borrower or any of its Subsidiaries not otherwise permitted
under this Section 7.03 in an aggregate amount not in excess of 3.0% of Tangible
Assets of the Borrower and its Subsidiaries; and




     (n) Investments in any Securitization Subsidiary in connection with any Permitted
Securitization Program.



          7.04 Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into
another Person, or Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any
Person, except that, so long as no Default exists or would result therefrom:





     (a) any Subsidiary may merge with (i) the Borrower, provided, that the Borrower
shall be the continuing or surviving Person, or (ii) any one or more other Subsidiaries,
provided, that when any Subsidiary that is a Loan Party is merging with another
Subsidiary, the Loan Party shall be the continuing or surviving Person;




     (b) any Subsidiary may Dispose of all or substantially all of its assets (upon
voluntary liquidation or otherwise) to the Borrower or to another Subsidiary;
provided, that if the transferor in such a transaction is a Loan Party, then the
transferee must either be the Borrower or another Loan Party;




     (c) the Borrower and any Subsidiary may merge or consolidate with any other Person in a
transaction in which the Borrower is the surviving or continuing Person; and




     (d) the Borrower and its Subsidiaries may consummate any transaction that would be
permitted as an Investment under Section 7.03.



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          7.05 Dispositions. Make any Disposition or enter into any agreement to make any
Disposition, except:





     (a) Dispositions of used, worn out, obsolete or surplus property by the Borrower or any
of its Subsidiaries in the ordinary course of business or the abandonment or allowance to
lapse or expire or other Disposition of Intellectual Property in the ordinary course of
business that is, in the reasonable judgment of the Borrower, no longer
economically practicable to maintain or useful in the conduct of the Borrower and its
Subsidiaries taken as a whole;




     (b) Dispositions of inventory in the ordinary course of business;




     (c) Dispositions of equipment or real property to the extent that (i) such property is
exchanged for credit against the purchase price of similar replacement property or (ii) the
proceeds of such Disposition are reasonably promptly applied to the purchase price of such
replacement property;




     (d) Dispositions of property by any Subsidiary to the Borrower or to a wholly-owned
Subsidiary; provided, that if the transferor of such property is a Loan Party, the
transferee thereof must either be the Borrower or a another Loan Party;




     (e) Dispositions permitted by Section 7.04;




     (f) Dispositions by the Borrower and its Subsidiaries of property pursuant to
sale-leaseback transactions, provided, that the book value of all property so
Disposed of, from and after the Original Closing Date, shall not exceed 2.0% of Tangible
Assets;




     (g) Dispositions by the Borrower and its Subsidiaries not otherwise permitted under
this Section 7.05; provided, that (i) at the time of such Disposition, no
Default shall exist or would result from such Disposition, and (ii) the aggregate book value
of all property Disposed of in reliance on this clause (g) in any fiscal year shall not
exceed 2.5% of Tangible Assets;




     (h) so long as no Default shall occur and be continuing, the grant of any option or
other right to purchase any asset in a transaction that would be permitted under the
provisions of this Section 7.05;




     (i) leases (including operating and capital leases), subleases, assignments, licenses,
sublicenses of real or personal property or Intellectual Property in the ordinary course of
business and in accordance with the applicable Collateral Documents; provided,
however, that any license or sublicense of intellectual property shall be on the
non-exclusive basis;




     (j) sales or discounts (without recourse) of accounts receivable arising in the
ordinary course of business in connection with the compromise of collection thereof;




     (k) sales, transfers and other dispositions of Investments in joint ventures to the
extent required by, or make pursuant to customary buy/sell arrangement between, the



91









 







joint venture parties set forth in joint venture arrangements and similar binding arrangements;




     (l) transfers of property subject to casualty or condemnation events upon receipt of
the Net Cash Proceeds constituting and Extraordinary Receipt; and




     (m) Dispositions of receivables and rights related to such receivables in connection
with any Permitted Securitization Programs.


provided, however, that any Disposition pursuant to Section 7.05(a),
(b), (c), (f), (g) and (l) shall be for fair market value
and any Disposition pursuant to Section 7.05(m) shall be for Fair Market Value.




          7.06 Restricted Payments. Declare or make, directly or indirectly, any Restricted
Payment, except that, so long as no Default shall have occurred and be continuing at the time of
any action described below or would result therefrom:





     (a) each Subsidiary may make Restricted Payments to the Borrower, the Subsidiary
Guarantors and any other Person that owns a direct Equity Interest in such Subsidiary,
ratably according to their respective holdings of the type of Equity Interest in respect of
which such Restricted Payment is being made;




     (b) the Borrower and each Subsidiary may declare and make dividend payments or other
distributions payable solely in the common stock or other Equity Interests of such Person;




     (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire Equity
Interests issued by it with the proceeds received from the substantially concurrent issue of
new shares of its common Equity Interests;




     (d) the Borrower may declare or pay cash dividends to its stockholders and purchase,
redeem, or otherwise acquire for cash Equity Interests issued by it solely out of 25% of
Consolidated Net Income (excluding the impact (positive or negative) of sales contract
accretion) of the Borrower and its Subsidiaries arising after December 31, 2009 and computed
on a cumulative consolidated basis with other such transactions by the Borrower since such
date; provided, that at the time of such declaration (in the case of dividends) or
the date of any such Restricted Payment (in the case of any other Restricted Payment), and
after giving effective thereto, no Default shall have occurred and be continuing and the
Borrower is in compliance with the financial covenants set forth in Section 7.11;
and




     (e) the Borrower or any of its Subsidiaries may purchase (i) Equity Interests in any
Loan Party or options with respect thereto held by directors, officers or employees of the
Borrower or any Subsidiary (or their estates or authorized representatives) in connection
with the death, disability or termination of employment of any such director, officer or
employee and (ii) Equity Interests in any Loan Party for future issuance under any employee
stock plan.



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          7.07 Change in Nature of Business. Engage in any material line of business other than a Similar Business.




          7.08 Transactions with Affiliates. Enter into any transaction of any kind with any
Affiliate, including, without limitation, any purchase, sale, lease or exchange of property or the
rendering of any service, unless such transaction is (a) not prohibited by this Agreement and (b)
upon fair and reasonable terms substantially as favorable to the Borrower or such Subsidiary as
would be obtainable by the Borrower or such Subsidiary at the time in a comparable arm’s length
transaction with a Person other than an Affiliate. The foregoing restrictions shall not apply to
the following:





     (a) transactions between or among the Borrower and any other Loan Parties or between and among
any Loan Parties;




     (b) the payment of reasonable and customary fees and reimbursement of expenses payable to
directors of the Borrower or any Subsidiary or to any Plan, Plan administrator or Plan trustee;




     (c) loans and advances to directors, officers and employees to the extent permitted by
Section 7.03;




     (d) arrangements with respect to the procurement of services of directors, officers,
independent contractors, consultants or employees in the ordinary course of business and the
payment of customary compensation (including bonuses) and other benefits (including retirement,
health, stock option and other benefit plans) and reasonable reimbursement arrangements in
connection therewith;




     (e) payments to directors and officers of the Borrower and its Subsidiaries in respect of the
indemnification of such Persons in such respective capacities from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements, as the case may be, pursuant to the Organization Documents or other corporate action
of the Borrower or its Subsidiaries, respectively, or pursuant to applicable law; and




     (f) Restricted Payments permitted by Section 7.06.



          7.09 Burdensome Agreements. Enter into any Contractual Obligation (other than this
Agreement or any other Loan Document) that (a) limits the ability (i) of any Subsidiary to make
Restricted Payments to the Borrower or any Subsidiary Guarantor or to otherwise transfer property
to or invest in the Borrower or any Subsidiary Guarantor, unless such Contractual Obligations could
not reasonably be expected to materially hinder the Borrower’s ability to meet its obligations
under this Agreement.







93









 








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




          7.11 Financial Covenants. (a) Consolidated Interest Coverage Ratio. Permit
the Consolidated Interest Coverage Ratio as of the end of any fiscal quarter of the Borrower, (i)
commencing with the fiscal quarter ending June 30, 2010 until the fiscal quarter ending December
31, 2010, for the period of four consecutive fiscal quarters of the Borrower ending on such date to
be less than 3.00:1.00 and (ii) commencing with the fiscal quarter ending March 31, 2011, for the
period of four consecutive fiscal quarters of the Borrower ending on such date to be less than
3.50:1.00.




          (b) Consolidated Net Leverage Ratio. Permit the Consolidated Net Leverage Ratio as of
the end of any fiscal quarter of the Borrower, commencing with the fiscal quarter ending June 30,
2010, for any period of four consecutive fiscal quarters of the Borrower ending on such date to be
greater than 3.00:1.00.




          7.12 Capital Expenditures. Make or become legally obligated to make any Capital
Expenditure, except for Capital Expenditures in the ordinary course of business not exceeding, in
the aggregate for the Borrower and its Subsidiaries during each fiscal year set forth below, the
amount set forth opposite such fiscal year:




	 	 	 	 	 
	Fiscal Year	 	Amount	 
	2010
	 	$	200,000,000	 
	2011
	 	$	250,000,000	 
	2012
	 	$	240,000,000	 
	2013
	 	$	350,000,000	 





; provided, however, that so long as no Default has occurred and is continuing or
would result from such expenditure, any portion of any amount set forth above, if not expended in
the fiscal year for which it is permitted above, may be carried over for expenditure in the next
following fiscal year; and provided, further, if any such amount is so carried
over, it will be deemed used in the applicable subsequent fiscal year before the amount set forth
opposite such fiscal year above.




          7.13 Amendments of Organization Documents. Amend any of its Organization Documents in
any respect materially adverse to the Lenders.




          7.14 Accounting Changes. Make any change in (a) its accounting policies or reporting practices, except as required
or permitted by GAAP, or (b) its fiscal year.




          7.15 Prepayments, Etc. of Indebtedness. If an Event of Default under Sections
8.01(a) or (b) (only with respect to an Event of Default under Section 7.11)
shall have occurred and be continuing, voluntarily prepay, redeem, purchase, defease or otherwise
satisfy prior to the scheduled maturity thereof in any manner, or make any payment in violation of
any subordination terms of, any Indebtedness, except (a) the prepayment of the Credit Extensions in


94









 







accordance with the terms of this Agreement and (b) regularly scheduled or required repayments or
redemptions of Indebtedness set forth in Schedule 7.02 and refinancings and refundings of
such Indebtedness in compliance with Section 7.02(c).




          7.16 Amendment, Etc. of Related Documents and Indebtedness. (a) Cancel or terminate
any Related Document or consent to or accept any cancellation or termination thereof, other than in
accordance with its terms (b) amend, modify or change in any manner any term or condition of any
Related Document or give any consent, waiver or approval thereunder, (c) waive any default under or
any breach of any term or condition of any Related Document, (d) take any other action in
connection with any Related Document, in the case of each of clauses (a) through (d), that would
materially impair the value of the interest or rights of any Loan Party thereunder or that would
materially impair the ability of the Lenders to be repaid hereunder or (e) if an Event of Default
under Sections 8.01(a) or (b) (only with respect to an Event of Default under
Section 7.11) shall have occurred and be continuing, amend, modify or change in any manner
any term or condition of any Indebtedness set forth in Schedule 7.02, except for any
refinancing, refunding, renewal or extension thereof permitted by Section 7.02(c).




          7.17 Limitation on Negative Pledge Clauses. Enter into any Contractual Obligation
(other than this Agreement or any other Loan Document) that limits the ability of the Borrower or
any Subsidiary Guarantor to create, incur, assume or suffer to exist any Lien upon any of its
property to secure the Obligations hereunder; provided, however, that the foregoing
clause shall not apply to Contractual Obligations which:




          (a) exist on the date hereof and (to the extent not otherwise permitted by this Section
7.17) are listed on Schedule 7.17 hereto;



          (b) are binding on a Subsidiary at the time such Subsidiary first becomes a Subsidiary of the
Borrower, so long as such Contractual Obligations were not entered into solely in contemplation of
such Person becoming a Subsidiary of the Borrower;



          (c) arise in connection with any Lien permitted by Section 7.01 to the extent such
restrictions relate solely to the assets (and any proceeds in respect thereof) which are the
subject of such Lien;



          (d) represent Indebtedness permitted by Section 7.02 (b), (c), (d), (e), (i), (k), (l),
(n) and (o); provided, that such Indebtedness shall not conflict with (i) any
terms of this Agreement, any other Loan Document or the terms of any other Indebtedness and (ii)
the Borrower’s obligation to grant Liens to the Administrative Agent for the benefit of the Secured
Parties in Collateral acquired after the Restatement Date in accordance with the terms of the Loan
Documents;



          (e) represent secured Indebtedness permitted by Section 7.01(j) to the extent that
such restrictions apply only to the Subsidiaries incurring or guaranteeing such Indebtedness (and
the Subsidiaries of such Subsidiaries);



          (f) arise in connection with any Disposition permitted by Section 7.05, with respect
to the assets so Disposed;



95









 





          (g) are customary provisions in joint venture agreements and other similar agreements
applicable solely to such joint venture or the Equity Interests therein;



          (h) are customary restrictions on leases, subleases, licenses or asset sale agreements
otherwise permitted hereby so long as such restrictions relate to the assets subject thereto;



          (i) are customary provisions restricting subletting or assignment of any lease governing a
leasehold interest of the Borrower or any Subsidiary;



          (j) are customary limitations (including financial maintenance covenants) existing under or by
reason of leases entered into in the ordinary course of business;



          (k) are restrictions on cash or other deposits imposed under contracts entered into in the
ordinary course of business;



          (l) are customary provisions restricting assignment of any agreements; or



          (m) are restrictions imposed by any agreement relating to any Permitted Securitization Program
to the extent that such restrictions relate to the Securitization Assets that are the subject of
such Permitted Securitization Program; or



          (n) are set forth in any agreement evidencing an amendment, modification, restatement,
renewal, increase, supplement, refunding, replacement or refinancing of the Contractual Obligations
referred to in clauses (a) through (l) above; provided, that such amendment, modification,
restatement, renewal, increase, supplement, refunding, replacement or refinancing is, in the good
faith judgment of the Borrower, not materially less favorable to the Loan Parties and the Lenders
with respect to such limitations than those applicable pursuant to
such Contractual Obligations prior to such amendment, modification, restatement, renewal,
increase, supplement, refunding, replacement or refinancing.



ARTICLE VIII

EVENTS OF DEFAULT AND REMEDIES




          8.01 Events of Default. Any of the following shall constitute an Event of Default:





     (a) Non-Payment. The Borrower or any other Loan Party fails to pay (i) when
and as required to be paid herein, any amount of principal of any Loan or any L/C Obligation
or (ii) within three days after the same becomes due, any interest on any Loan or on any L/C
Obligation, any fee due hereunder, or any other amount payable hereunder or under any other
Loan Document; or




     (b) Specific Covenants. (i) The Borrower fails to perform or observe any term,
covenant or agreement contained in any of Sections 6.03(a), 6.03(b),
6.03(c), 6.05(a), 6.07,6.08,6.10, 6.11,
6.12, 6.15, 6.16, 6.20, 6.21 or Article VII,
(ii) any of the Subsidiary Guarantors fails to perform or observe any term, covenant or
agreement contained in Section IV of the Subsidiary Guaranty (but only to the extent
it relates to a default under



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one of the covenants listed in clause (i) above) or (iii) any
of the Loan Parties fails to perform or observe any term, covenant or agreement contained in
Section 4 of the Security Agreement; or




     (c) Other Defaults. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in Section 8.01(a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such failure
continues for 30 days; or




     (d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the Borrower or
any other Loan Party herein, in any other Loan Document, or in any document delivered in
connection herewith or therewith shall be incorrect or misleading in any material respect
when made or deemed made; or




     (e) Cross-Default. (i) The Borrower or any Subsidiary (A) fails to make any
payment when due (whether by scheduled maturity, required prepayment, acceleration, demand,
or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness
hereunder, Indebtedness under Swap Contracts or Guarantees of the Obligations), in each case
having an aggregate principal amount (including undrawn committed or available amounts and
including amounts owing to all creditors under any combined or syndicated credit agreement)
of more than the Threshold Amount, beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness or Guarantee was created or (B) fails
to observe or perform any other agreement or condition relating to any such Indebtedness or
Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other
event occurs, the effect of which default or other event is to permit the holder or holders
of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with
the giving of notice if required, such Indebtedness to become due prior to its stated
maturity, or such Guarantee to become due or payable; (ii) there occurs under any Swap
Contract an Early Termination Date (as defined under such Swap Contract) resulting from (A)
any event of default under such Swap Contract as to which a Loan Party or any Subsidiary
thereof is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination
Event (as so defined) under such Swap Contract as to which a Loan Party or any Subsidiary
thereof is an Affected Party (as so defined) and, in either event, the Swap Termination
Value owed by such Loan Party or such Subsidiary as a result thereof is greater than the
Threshold Amount; or (iii) there occurs under any of the Coal Supply Agreements, the Coal
Supply Agreement I, the Coal Supply Agreement II, or any Liability Assumption Agreement an
early termination of such agreement for any reason which could reasonably be expected to
have an adverse effect on any Loan Party or that would impair the ability of the Lenders to
be repaid in full hereunder.




     (f) Insolvency Proceedings, Etc. The Borrower or any of its Subsidiaries
institutes or consents to the institution of any proceeding under any Debtor Relief Law, or
makes an assignment for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or



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similar officer for it or for all or any substantial part of its property; or any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed
without the application or consent of such Person and the appointment continues undischarged
or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to
any such Person or to all or any substantial part of its property is instituted without the
consent of such Person and continues undismissed or unstayed for 60 calendar days, or an
order for relief is entered in any such proceeding; or




     (g) Inability to Pay Debts; Attachment. (i) The Borrower or any of its
Subsidiaries becomes unable or admits in writing its inability or fails generally to pay its
debts as they become due, or (ii) any writ or warrant of attachment or execution or similar
process is issued or levied against all or any substantial part of the property of any such
Person and is not released, vacated or fully bonded within 60 days after its issue or levy;
or




     (h) Judgments. There is entered against the Borrower or any of its
Subsidiaries one or more final judgments or orders for the payment of money in an aggregate
amount (as to all such judgments and orders) exceeding the Threshold Amount (to the extent
not covered by independent third-party insurance), and, such judgments or orders shall not
have been vacated, discharged, stayed or bonded pending appeal within 60 days from the entry
thereof; or




     (i) ERISA. (i) The occurrence of any of the following events that,
individually or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect: (i) an ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in an actual obligation to
pay money of the Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or
the PBGC or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after the
expiration of any applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan; or




     (j) Invalidity of Loan Documents. Any Loan Document, at any time after its
execution and delivery and for any reason other than as expressly permitted hereunder or
satisfaction in full of all the Obligations, ceases to be in full force and effect; or any
Loan Party or any other Person contests in any manner the validity or enforceability of any
Loan Document; or any Loan Party denies that it has any or further liability or obligation
under any Loan Document, or purports to revoke, terminate or rescind any Loan Document; or




     (k) Change of Control. There occurs any Change of Control;




     (l) Collateral Documents. Any Collateral Document after delivery thereof
pursuant to Section 4.01 or 6.12 shall for any reason (other than pursuant
to the terms hereof or thereof, including as a result of a transaction permitted by
Section 7.04 or 7.05) cease to create a valid and perfected Lien, with the
priority required hereby or thereby (subject to Liens permitted by Section 7.01), on
the Collateral purported to be covered thereby, except to the extent that any such loss of
perfection or priority results from the



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failure of the Administrative Agent to maintain
possession of certificates actually delivered to it representing securities pledged under
the Collateral Documents or to file UCC continuation statements and except as to Collateral
consisting of real property to the extent that such losses are covered by a lender’s title
insurance policy and such insurer has not denied or failed to acknowledge coverage; or




     (m) Tax Matters. (i) The Spin-Off fails to qualify under Section 355 of the
Code, (ii) the Capital Stock of Borrower distributed in connection with the Spin-Off fails
to be treated as qualified property pursuant to Section 355(e) of the Code or (iii) the
contribution of assets by Peabody to Borrower in connection with the Spin-Off fails to
qualify under Section 368 of the Code or Peabody recognizes any gain in connection with such
contribution.



          8.02 Remedies Upon Event of Default. If any Event of Default occurs and is
continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the
Required Lenders, take any or all of the following actions:





     (a) declare the commitment of each Lender to make Loans and any obligation of the L/C
Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and
obligation shall be terminated;




     (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued
and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan
Document to be immediately due and payable, without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by the Borrower;




     (c) require that the Borrower Cash Collateralize the L/C Obligations (in an amount
equal to the then Outstanding Amount thereof); and




     (d) exercise on behalf of itself, the Lenders and the L/C Issuer all rights and
remedies available to it, the Lenders and the L/C Issuer under the Loan Documents or
applicable law;


provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Debtor Relief Laws of the United States,
the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit
Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and
all interest and other amounts as aforesaid shall automatically become due and payable, and the
obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of the Administrative Agent or any
Lender.




          8.03 Application of Funds. After the exercise of remedies provided for in Section
8.02 (or after the Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set forth in the proviso
to Section 8.02), any amounts received on account of the Obligations shall be applied by
the Administrative Agent in the following order:





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     First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including fees, charges and disbursements of
counsel to the Administrative Agent and amounts payable under Article III) payable
to the Administrative Agent in its capacity as such;




     Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal, interest and Letter of Credit Fees)
payable to the Lenders and the L/C Issuer (including fees, charges and disbursements of
counsel to the respective Lenders and the L/C Issuer (including fees and time charges for
attorneys who may be employees of any Lender or the L/C Issuer) and amounts payable under
Article III, ratably among them in proportion to the respective amounts described in
this clause Second payable to them; Third, to payment of that portion of the Obligations constituting accrued and
unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and other
Obligations, ratably among the Lenders and the L/C Issuer in proportion to the respective
amounts described in this clause Third payable to them;




     Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans, L/C Borrowings and amounts owing under Secured Hedge Agreements and
Secured Cash Management Agreements, ratably among the Lenders, the L/C Issuer, the Hedge
Banks and the Cash Management Banks in proportion to the respective amounts described in
this clause Fourth held by them;




     Fifth, to the Administrative Agent for the account of the L/C Issuer, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of
Letters of Credit; and




     Last, the balance, if any, after all of the Obligations have been indefeasibly
paid in full, to the Borrower or as otherwise required by Law.


Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount
of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings
under such Letters of Credit as they occur. If any amount remains on deposit as cash collateral
after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be
applied to the other Obligations, if any, in the order set forth above.




ARTICLE IX

ADMINISTRATIVE AGENT




          9.01 Appointment and Authority. (a) Each of the Lenders and the L/C Issuer hereby
irrevocably appoints Bank of America to act on its behalf as the Administrative Agent hereunder and
under the other Loan Documents and authorizes the Administrative Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof
or thereof, together with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and
the L/C Issuer, and neither the Borrower nor any other Loan Party shall have rights as a third
party beneficiary of any of such provisions.




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          (b) The Administrative Agent shall also act as the “collateral agent” under the Loan
Documents, and each of the Lenders (in its capacities as a Lender, Swing Line Lender (if
applicable), potential Hedge Bank and potential Cash Management Bank) and the L/C Issuer hereby
irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and
the L/C Issuer for purposes of acquiring, holding and enforcing any and all Liens on Collateral
granted by any of the Loan Parties to secure any of the Obligations, together with such powers and
discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as
“collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.05 for purposes of holding
or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral
Documents, or for exercising any rights and remedies thereunder at the direction of the
Administrative Agent), shall be entitled to the benefits of all provisions of this Article
IX and Article X (including Section 10.04(c), as though such co-agents,
sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set
forth in full herein with respect thereto.




          9.02 Rights as a Lender. The Person serving as the Administrative Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders”
shall, unless otherwise expressly indicated or unless the context otherwise requires, include the
Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and
its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any
other advisory capacity for and generally engage in any kind of business with the Borrower or any
Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder
and without any duty to account therefor to the Lenders.




          9.03 Exculpatory Provisions. The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Administrative Agent:




     (a) shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing;



     (b) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby
or by the other Loan Documents that the Administrative Agent is required to exercise as
directed in writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be expressly provided for herein or in the other Loan Documents),
provided, that the Administrative Agent shall not be required to take any action
that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or applicable law; and



     (c) shall not, except as expressly set forth herein and in the other Loan Documents,
have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of its Affiliates that is communicated to or
obtained by the Person serving as the Administrative Agent or any of its Affiliates in any
capacity.



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          The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe
in good faith shall be necessary, under the circumstances as provided in Sections 10.01 and
8.02) or (ii) in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice
describing such Default is given to the Administrative Agent by the Borrower, a Lender or the L/C
Issuer.




          The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Agreement or
any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document, or the creation,
perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the
value or the sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in
Article IV or elsewhere herein, other than to confirm receipt of items expressly required
to be delivered to the Administrative Agent.




          9.04 Reliance by Administrative Agent. The Administrative Agent shall be entitled to
rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message,
Internet or intranet website posting or other distribution) believed by it to be genuine and to
have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed by it to have been
made by the proper Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the
Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C
Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender
or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The
Administrative Agent may consult with legal counsel (who may be counsel for the Borrower),
independent accountants and other experts selected by it, and shall not be liable for any action
taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.




          9.05 Delegation of Duties. The Administrative Agent may perform any and all of its
duties and exercise its rights and powers hereunder or under any other Loan Document by or through
any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any
such sub-agent may perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this Article shall apply
to any such sub-agent and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection with the syndication of the
credit facilities provided for herein as well as activities as Administrative Agent.





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          9.06 Resignation of Administrative Agent. The Administrative Agent may at any
time give notice of its resignation to the Lenders, the L/C Issuer and the Borrower. Upon receipt
of any such notice of resignation, the Required Lenders shall have the right, with the approval of
the Borrower (such approval not to be unreasonably withheld), to appoint a successor, which shall
be a bank with an office in the United States, or an Affiliate of any such bank with an office in
the United States. If no such successor shall have been so appointed by the Required Lenders and
shall have accepted such appointment within 30 days after the retiring Administrative Agent gives
notice of its resignation, then the retiring Administrative Agent may on behalf of the Lenders and
the L/C Issuer, appoint a successor Administrative Agent meeting the qualifications set forth
above; provided, that if the Administrative Agent shall notify the Borrower and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (a) the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan Documents (except
that in the case of any collateral security held by the Administrative Agent on behalf of the
Lenders or the L/C Issuer under any of the Loan Documents, the retiring Administrative Agent shall
continue to hold such collateral security until such time as a successor Administrative Agent is
appointed) and (b) all payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender and the L/C Issuer
directly, until such time as the Required Lenders appoint a successor Administrative Agent as
provided for above in this Section. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder
or under the other Loan Documents (if not already discharged therefrom as provided above in this
Section). The fees payable by the Borrower to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the Borrower and such
successor. After the retiring Administrative Agent’s resignation hereunder and under the other
Loan Documents, the provisions of this Article and Section 10.04 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties
in respect of any actions taken or omitted to be taken by any of them while the retiring
Administrative Agent was acting as Administrative Agent.


          Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also
constitute its resignation as L/C Issuer and Swing Line Lender. Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, (i) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and
Swing Line Lender, (ii) the retiring L/C Issuer and Swing Line Lender shall be discharged from all
of their respective duties and obligations hereunder or under the other Loan Documents, and (iii)
the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit,
if any, outstanding at the time of such succession or make other arrangements satisfactory to the
retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect
to such Letters of Credit.


          9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender and the L/C
Issuer acknowledges that it has, independently and without reliance upon the Administrative Agent
or any other Lender or any of their Related Parties and based on such



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documents and information as
it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.
Each Lender and the L/C Issuer also acknowledges that it will, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related Parties and based on such
documents and information as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement, any other Loan
Document or any related agreement or any document furnished hereunder or thereunder.



          9.08 No Other Duties, Etc. Except as expressly set forth herein, none of the “Sole
Lead Book Manager”, “Joint Lead Arranger” or other titles listed on the cover page hereof shall
have any powers, duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or the L/C
Issuer hereunder.


          9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or any other judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable
as herein expressed or by declaration or otherwise and irrespective of whether the Administrative
Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention
in such proceeding or otherwise




     (a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing
and unpaid and to file such other documents as may be necessary or advisable in order to
have the claims of the Lenders, the L/C Issuer and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and advances of the Lenders,
the L/C Issuer and the Administrative Agent and their respective agents and counsel and all
other amounts due the Lenders, the L/C Issuer and the Administrative Agent under
Sections 2.03(i) and (j), 2.09 and 10.04) allowed in such
judicial proceeding; and




     (b) to collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;



and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such
payments to the Administrative Agent and, in the event that the Administrative Agent shall consent
to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 10.04.



          Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights



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of any Lender or the
L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or
the L/C Issuer or in any such proceeding.



          9.10 Collateral and Guaranty Matters. The Lenders and the L/C Issuer irrevocably
authorize the Administrative Agent, at its option and in its discretion,




     (a) to release any Lien on any property granted to or held by the Administrative Agent
under any Loan Document (i) upon termination of the Aggregate Commitments and payment in
full of all Obligations (other than contingent indemnification obligations) and the
expiration or termination of all Letters of Credit, (ii) that is sold or to be sold as part
of or in connection with any sale permitted hereunder or under any other Loan Document, or
(iii) if approved, authorized or ratified in writing in accordance with Section
10.01;




     (b) to release any Subsidiary Guarantor from its obligations under the Subsidiary
Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted
hereunder; and




     (c) to subordinate any Lien on any property granted to or held by the Administrative
Agent under any Loan Document to the holder of any Lien on such property that is permitted
by Section 7.01(i).


          Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release any Lien or subordinate its interest in
particular types or items of property, or to release any Subsidiary Guarantor from its obligations
under the Subsidiary Guaranty pursuant to this Section 9.10. In each case as specified in
this Section 9.10, the Administrative Agent will, at the Borrower’s expense, execute and
deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to
evidence the release of such item of Collateral from the assignment and security interest granted
under the Collateral Documents or to subordinate its interest in such item, or to release such
Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the
Loan Documents and this Section 9.10.


          9.11 Indemnification. If the IRS or any other Governmental Authority of the United
States or other jurisdiction asserts a claim that the Administrative Agent did not properly
withhold tax from amounts paid to or for the account of any Lender or L/C Issuer due to a failure
on the part of such Lender or L/C Issuer (because the appropriate form was not delivered, was not
properly executed, or because such Lender or L/C Issuer failed to notify the Administrative Agent
of a change in circumstances which rendered the exemption from, or reduction of, withholding tax
ineffective, or for any other reason), such Lender or L/C Issuer shall indemnify and hold the
Administrative Agent harmless for all amounts paid, directly or indirectly, by the Administrative
Agent, as tax or otherwise, including penalties and interest, and including any taxes imposed by
any jurisdiction on the amounts payable to the Administrative Agent under this
Section 9.11, together with all costs and expenses (including attorneys fees and expenses).
The obligation of the Lenders and the L/C Issuer under this subsection shall survive the payment of
all Obligations hereunder and the resignation or replacement of the Administrative Agent.




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ARTICLE X

MISCELLANENOUS



          10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or
any other Loan Document, and no consent to any departure by the Borrower or any other Loan Party
therefrom, shall be effective unless in writing signed by the Required Lenders and the Borrower or
the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and
each such waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such amendment, waiver or consent shall:




     (a) extend or increase the Commitment of any Lender (or reinstate any Commitment
terminated pursuant to Section 8.02) without the written consent of such Lender;




     (b) postpone any date fixed by this Agreement or any other Loan Document for any
payment or mandatory prepayment of principal, interest, fees or other amounts due to the
Lenders (or any of them) or any mandatory reduction of the Aggregate Commitments hereunder
without the written consent of each Lender directly adversely affected thereby;




     (c) reduce the principal of, or the stated rate of interest specified herein on, any
Loan or Unreimbursed Amount, or (subject to clause (iv) of the second proviso to this
Section 10.01) any fees or other amounts payable hereunder without the written
consent of each Lender entitled to such amount; provided, however, that only
the consent of the Required Lenders shall be necessary (i) to amend the definition of
“Default Rate” or to waive any obligation of the Borrower to pay interest or Letter of
Credit Fees at the Default Rate or (ii) to amend any financial covenant hereunder (or any
defined term used therein) even if the effect of such amendment would be to reduce the rate
of interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder;




     (d) change Section 2.13 or Section 8.03 in a manner that would alter
the pro rata sharing of payments required thereby without the written consent of each
Lender;




     (e) change any provision of this Section 10.01 or the definition of “Required
Lenders” or any other provision hereof specifying the number or percentage of Lenders
required to amend, waive or otherwise modify any rights hereunder or make any determination
or grant any consent hereunder without the written consent of each Lender;




     (f) other than as permitted by Section 9.10, release all or substantially all
of the Collateral in any transaction or series of related transactions, without the written
consent of each Lender; or




     (g) release all or substantially all of the Subsidiary Guarantors, without the written
consent of each Lender, except to the extent the release of any Guarantor is permitted
pursuant to Section 9.10 (in which case such release may be made by the
Administrative Agent acting alone);



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and provided, further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights
or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of
Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing
and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; and (iii) no amendment, waiver or consent
shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required
above, affect the rights or duties of the Administrative Agent under this Agreement or any other
Loan Document; and (iv) the Fee Letters may be amended, or rights or privileges thereunder waived,
in a writing executed only by the parties thereto. Notwithstanding anything to the contrary
herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or
consent hereunder, except that the Commitment of such Lender may not be increased or extended
without the consent of such Lender.




     In addition, notwithstanding the foregoing, this Agreement may be amended (or amended and
restated) with the written consent of the Required Lenders, the Administrative Agent and the
Borrower (x) to add one or more additional credit facilities to this Agreement and to permit the
extensions of credit from time to time outstanding thereunder and the accrued interest and fees in
respect thereof (collectively, the “Additional Extensions of Credit”) to share ratably in
the benefits of this Agreement and the other Loan Documents with the Revolving Credit Loans and the
accrued interests and fees in respect thereof and (y) to include appropriately the Lenders holding
such credit facilities in any determination of the Required Lenders; provided,
however, that (i) no such amendment shall permit the Additional Extensions of Credit to
share ratably with or with preference to the Revolving Credit Loans in the application of any
mandatory prepayments without the consent of the Required Revolving Lenders and (ii) the terms of
such amendment shall be no more favorable to the Lenders under such Additional Extensions of Credit
than the terms of this agreement are to the Lenders, including, but not limited to, with respect to
the pricing of such Additional Extension of Credit.



     If any Lender does not consent to a proposed amendment, waiver, consent or release with
respect to any Loan Document that requires the consent of each Lender and that has been approved by
the Required Lenders, the Borrower may replace each non-consenting Lender in accordance with
Section 10.13; provided, that such amendment, waiver, consent or release can be
effected as a result of all such assignments.



     Any such waiver and any such amendment or modification pursuant to this Section 10.01
shall apply equally to each of the Lenders and shall be binding upon the Borrower, the Lenders,
the L/C Issuer, the Swing Line Lender, the Administrative Agent and all future holders of the
Loans. In the case of any waiver, the Borrower, the Lenders, the L/C Issuer, the Swing Line Lender
and the Administrative Agent shall be restored to their former positions and rights hereunder and
under the other Loan Documents, and any Default or Event of Default that is waived pursuant to this
Section 10.01 shall be deemed to be cured and not continuing during the period of such
waiver.



     10.02 Notices; Effectiveness; Electronic Communications. (a) Notices Generally.
Except in the case of notices and other communications expressly permitted to be given by telephone
(and except as provided in subsection (b) below), all notices and other



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communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopier as follows, and all notices and other
communications expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:





     (i) if to the Borrower, the Administrative Agent, the L/C Issuer or the Swing Line
Lender, to the address, telecopier number, electronic mail address or telephone number
specified for such Person on Schedule 10.02; and




     (ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire or on Schedule 1 to the
Lender Addendum to which such Lender is a party.



Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by telecopier shall be deemed to have been
given when sent (except that, if not given during normal business hours for the recipient, shall be
deemed to have been given at the opening of business on the next business day for the recipient).
Notices delivered through electronic communications to the extent provided in subsection (b) below
shall be effective as provided in such subsection (b).



          (b) Electronic Communications. Notices and other communications to the Lenders and
the L/C Issuer hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative
Agent, provided, that the foregoing shall not apply to notices to any Lender or the L/C
Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable, has notified
the Administrative Agent that it is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent or the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided, that approval of such procedures may be limited to
particular notices or communications.


          Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to the Lenders and the L/C Issuers to an e-mail address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt
requested” function, as available, return e-mail or other written acknowledgement),
provided, that if such notice or other communication is not sent during the
normal business hours of the recipient, such notice or communication shall be deemed to have
been sent at the opening of business on the next business day for the recipient, and (ii) notices
or communications posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause
(i) of notification that such notice or communication is available and identifying the website
address therefor.


          (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR 


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ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its
Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any
Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of
any kind (whether in tort, contract or otherwise) arising out of the Borrower’s or the
Administrative Agent’s transmission of Borrower Materials through the Internet, except to the
extent that such losses, claims, damages, liabilities or expenses have resulted from the gross
negligence or willful misconduct of such Agent Party; provided, however, that in no
event shall any Agent Party have any liability to the Borrower, any Lender, the L/C Issuer or any
other Person for indirect, special, incidental, consequential or punitive damages (as opposed to
direct or actual damages).



          (d) Change of Address, Etc. Each of the Borrower, the Administrative Agent, the L/C
Issuer and the Swing Line Lender may change its address, telecopier or telephone number for notices
and other communications hereunder by notice to the other parties hereto. Each other Lender may
change its address, telecopier or telephone number for notices and other communications hereunder
by notice to the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender. In
addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that
the Administrative Agent has on record (i) an effective address, contact name, telephone number,
telecopier number and electronic mail address to which notices and other communications may be sent
and (ii) accurate wire instructions for such Lender.


          (e) Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative
Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Borrowing Notices and Swing Line Loan Notices) purportedly given by or on behalf of the
Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or
were not preceded or followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation thereof. All telephonic
notices to and other telephonic communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of the parties
hereto hereby consents to such recording.


          10.03 No Waiver; Cumulative Remedies. No failure by any Lender, the L/C Issuer or the
Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy,
power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided, and provided under each
other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.


          10.04 Expenses; Indemnity; Damage Waiver. (a) Costs and Expenses. The Borrower
shall pay (i) all reasonable and documented out-of-pocket expenses incurred by the



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Administrative
Agent and its Affiliates (including the reasonable and documented fees, charges and disbursements
of counsel for the Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution, delivery, administration
and enforcement of this Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), (ii) all reasonable and documented out-of-pocket expenses incurred
by the L/C Issuer in connection with the issuance, amendment, renewal or extension of any Letter of
Credit or any demand for payment thereunder and (iii) all reasonable and documented out-of-pocket
expenses incurred by the Administrative Agent, any Lender or the L/C Issuer (including the
reasonable and documented fees, charges and disbursements of any counsel for the Administrative
Agent, any Lender or the L/C Issuer) in connection with the enforcement or protection of its rights
(A) in connection with this Agreement and the other Loan Documents, including its rights under this
Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including
all such all reasonable and documented out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.



          (b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each Related Party of any of
the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold
each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related
reasonable out-of-pocket costs and expenses (including the reasonable fees, charges and
disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted against
any Indemnitee by any third party or by the Borrower or any other Loan Party arising out of, in
connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any
sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other
Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds
therefrom (including any refusal by the L/C Issuer to honor a
demand for payment under a Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged
presence or release of Hazardous Materials on or from any property owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the
Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory, whether brought by a third party or by the Borrower or any other Loan Party, and
regardless of whether any Indemnitee is a party thereto; provided, that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses (x) have resulted from the gross negligence or willful misconduct
of such Indemnitee or (y) result from a claim brought by the Borrower or any other Loan Party
against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under
any other Loan Document.


          (c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to




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be paid by it
to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related Party of any
of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment
is sought) of such unpaid amount, provided, that the unreimbursed expense or indemnified
loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity as such,
or against any Related Party of any of the foregoing acting for the Administrative Agent (or any
such sub-agent) or L/C Issuer in connection with such capacity. The obligations of the Lenders
under this subsection (c) are subject to the provisions of Section 2.12(d).



          (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.
No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the
use by unintended recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or thereby, except to
the extent such damages result from the gross negligence or willful misconduct of such Indemnitee.


          (e) Payments. All amounts due under this Section shall be payable not later than ten
Business Days after demand therefor.


          (f) Survival. The agreements in this Section shall survive the resignation of the
Administrative Agent, the L/C Issuer and the Swing Line Lender, the replacement of any Lender, the
termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the
other Obligations.


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




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Lenders and the L/C Issuer under clause
(b) of the preceding sentence shall survive the payment in full of the Obligations and the
termination of this Agreement.



          10.06
 Successors and Assigns. (a) Successors and Assigns Generally. The provisions
of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that no Loan Party may assign or
otherwise transfer any of its rights or obligations hereunder without the prior written consent of
the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the
provisions of Section 10.06(b), (ii) by way of participation in accordance with the provisions of
Section 10.06(d), or (iii) by way of pledge or assignment of a security interest subject to the
restrictions of Section 10.06(f). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section
and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative
Agent, the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.


          (b) Assignments by Lenders. Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans (including for purposes of this Section 10.06(b),
participations in L/C Obligations and in Swing Line Loans) at the time owing to it);
provided, that:




     (i) except in the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitment and the Loans at the time owing to it or in the case of an
assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to
a Lender, the aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such assignment,
determined as of the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and
Assumption, as of the Trade Date, shall not be less than $5,000,000, unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is continuing, the
Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed);
provided, however, that concurrent assignments to members of an Assignee
Group and concurrent assignments from members of an Assignee Group to a single Eligible
Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a
single assignment for purposes of determining whether such minimum amount has been met;




     (ii) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement with respect to the
Loans or the Commitment assigned, except that this clause (ii) shall not apply to rights in
respect of Swing Line Loans;



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     (iii) any assignment of a Commitment must be approved by the Administrative Agent, the
L/C Issuer and the Swing Line Lender unless the Person that is the proposed assignee is
itself a Lender (whether or not the proposed assignee would otherwise qualify as an Eligible
Assignee); and




     (iv) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee in the
amount of $3,500; provided, however, that the Administrative Agent may, in
its sole discretion, elect to waive such processing and recordation fee in the case of any
assignment. The Eligible Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.



Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment and Assumption, the
Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Sections 3.01, 3.04, 3.05 and 10.04
with respect to facts and circumstances occurring prior to the effective date of such assignment.
Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this subsection shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and obligations in accordance
with Section 10.06(d).



          (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”). The entries
in the Register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrower and the L/C Issuer, at any reasonable time and
from time to time upon reasonable prior notice.


          (d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s
participations in L/C Obligations and/or Swing Line Loans) owing to it); provided, that (i)
such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain





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solely responsible to the other parties hereto for the performance of such obligations and
(iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuer shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights and obligations under
this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve
any amendment, modification or waiver of any provision of this Agreement; provided, that
such agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in clauses (a), (b),
(c) and (f) of the first proviso to Section 10.01 that affects such Participant. Subject
to subsection (e) of this Section, the Borrower agrees that each Participant shall be
entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent
as if it were a Lender and had acquired its interest by assignment; provided, that in the
case of Section 3.01, such Participant shall have complied with the requirements of such
section. To the extent permitted by law, each Participant also shall be entitled to the benefits
of Section 10.08 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.13 as though it were a Lender.



          (e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 than the applicable Lender
would have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the Borrower’s prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to
the benefits of Section 3.01 unless the Borrower is notified of the participation sold to
such Participant and
such Participant agrees, for the benefit of the Borrower, to comply with Section
3.01(e) as though it were a Lender.


          (f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its Note, if any) to
secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided, that no such pledge or assignment shall release such Lender
from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as
a party hereto.


          (g) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar state Laws based on
the Uniform Electronic Transactions Act.


          (h) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if at any time Bank of America or any other L/C Issuer
assigns all of its Commitment and Revolving Credit Loans pursuant to Section 10.06(b), Bank
of America or any L/C Issuer may, (i) upon 30 days’ notice to the Borrower and the Lenders, resign
as L/C Issuer and/or (ii) upon 30 days’ notice to the Borrower, resign as Swing Line Lender. In
the event of any such resignation as L/C Issuer or Swing Line



114









 








Lender, the Borrower shall be
entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender hereunder;
provided, however, that no failure by the Borrower to appoint any such successor
shall affect the resignation of such L/C Issuer or Swing Line Lender, as the case may be. If Bank
of America resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of
the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date
of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right
to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts
pursuant to Section 2.03(c)). If Bank of America resigns as Swing Line Lender, it shall
retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line
Loans made by it and outstanding as of the effective date of such resignation, including the right
to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing
Line Loans pursuant to Section 2.04(c). Upon the appointment of a successor L/C Issuer
and/or Swing Line Lender, (a) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case
may be, and (b) the successor L/C Issuer shall issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession or make other arrangements
satisfactory to such L/C Issuer to effectively assume the obligations of such L/C Issuer with
respect to such Letters of Credit.



          10.07 Treatment of Certain Information; Confidentiality. Each of the Administrative
Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) on a need-to-know basis to its
Affiliates and to its and its Affiliates’ respective partners, directors, officers, employees,
agents, advisors and representatives (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory authority purporting to
have jurisdiction over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent required by applicable Laws or
regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this Agreement or any
Eligible Assignee invited to be a Lender pursuant to Section 2.14(c) or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to the
Borrower and its obligations, (g) with the consent of the Borrower or (h) to the extent such
Information becomes publicly available other than as a result of a breach of this Section.


          For purposes of this Section, “Information” means all information received from the
Borrower or any Subsidiary relating to the Borrower or any Subsidiary or any of their respective
businesses, other than any such information that is available to the Administrative Agent, any
Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by the Borrower or any
Subsidiary, provided, that in the case of information received from the Borrower or any
such Subsidiary after the date hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the confidentiality of Information as
provided in this Section shall be considered to have complied with its obligation




115









 








to do so if such
Person has exercised reasonable care to protect such Information, and in no event less than the
same degree of care to maintain the confidentiality of such Information as such Person would accord
to its own confidential information.



          Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the
Information may include material non-public information concerning the Borrower or a Subsidiary, as
the case may be, (b) it has developed compliance procedures regarding the use of material
non-public information and (c) it will handle such material non-public information in accordance
with applicable Law, including Federal and state securities laws.


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


          10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in
any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed
the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If the
Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to the Borrower. In determining whether the interest contracted for,
charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person
may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the
effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the
total amount of interest throughout the contemplated term of the Obligations hereunder.


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




116









 








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



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


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


          10.13
 Replacement of Lenders. If (a) any Lender requests compensation under Section 3.04,
 (b) the Borrower is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 3.01, (c) any Lender is at such time a
Defaulting Lender or has given notice pursuant to Section 3.02 or (d) any Lender becomes a
“Nonconsenting Lender” (hereinafter defined), then the Borrower may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent, require such Lender to (and such
Lender shall) assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in, and consents required by, Section 10.06), all of its interests, rights
and obligations under this Agreement and the related Loan Documents to an assignee selected by the
Borrower that shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment), provided, that:




     (a) the Administrative Agent shall have received the assignment fee specified in
Section 10.06(b);




     (b) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all
other amounts payable to it hereunder and under the other Loan Documents (including any
amounts under Section 3.05) from the assignee (to the extent of such



117









 







outstanding
principal and accrued interest and fees) or the Borrower (in the case of all other amounts);




     (c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments thereafter;




     (d) such assignment does not conflict with applicable Laws; and




     (e) neither the Administrative Agent nor any Lender shall be obligated to be or to find
the assignee.


          A Lender shall not be required to make any such assignment or delegation if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply. In the event that (x) the
Borrower or the Administrative Agent has requested the Lenders to consent to a departure or
waiver of any provisions of the Loan Documents or to agree to any amendment thereto and (y) the
Required Lenders have agreed to such consent, waiver or amendment, then any Lender who does not
agree to such consent, waiver or amendment shall be deemed a “Nonconsenting Lender.” Any
such replacement shall not be deemed a waiver of any rights that the Borrower shall have against
the replaced Lender.


          10.14
Governing Law; Jurisdiction; Etc. (a) GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


          (b) SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY
AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT
OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN
SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT
OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT
SHALL AFFECT ANY RIGHT TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.




118









 







          (c) WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF
THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION
OR PROCEEDING IN ANY SUCH COURT.


          (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.


          10.15 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


          10.16 Delivery of Lender Addenda. Each initial Lender shall become a party to this
Agreement by delivering to the Administrative Agent a Lender Addendum duly executed by such Lender,
the Borrower and the Administrative Agent.


          10.17 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), the Borrower acknowledges and agrees that: (i)
(A) the arranging and other services regarding this Agreement provided by the Administrative Agent
and any Arranger are arm’s-length commercial transactions between the Borrower and its Affiliates,
on the one hand, and the Administrative Agent and any Arranger, on the other hand, (B) the Borrower
has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed
appropriate, and (C) the Borrower is capable of evaluating, and understands and accepts, the terms,
risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii)
(A) the Administrative Agent and any Arranger each is and has been acting solely as a principal
and, except as expressly agreed in writing by the





119









 








relevant parties, has not been, is not, and will
not be acting as an advisor, agent or fiduciary for the Borrower or any of its Affiliates, or any
other Person and (B) neither the Administrative Agent nor any Arranger has any obligation to the
Borrower or any of its Affiliates with respect to the transactions contemplated hereby except those
obligations expressly set forth herein and in the other Loan Documents; and (iii) the
Administrative Agent and any Arranger and their respective Affiliates may be engaged in a broad
range of transactions that involve interests that differ from those of the Borrower and its
Affiliates, and neither the Administrative Agent nor any Arranger has any obligation to disclose
any of such interests to the Borrower or its Affiliates. To the fullest extent permitted by law,
the Borrower hereby waives and releases any claims that it may have against the Administrative
Agent and any Arranger with respect to any breach or
alleged breach of agency or fiduciary duty in connection with any aspect of any transaction
contemplated hereby.



          10.18 USA PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter
defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies
the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record
information that identifies each Loan Party, which information includes the name and address of
each Loan Party and other information that will allow such Lender or the Administrative Agent, as
applicable, to identify each Loan Party in accordance with the Act.


          10.19 Time of the Essence. Time is of the essence of the Loan Documents.


          10.20 Amendment and Restatement. It is the intention of each of the parties
hereto that the Original Credit Agreement be amended and restated in its entirety pursuant to this
Agreement so as to preserve and continue the perfection and priority of all Liens securing
Indebtedness and Obligations under the Original Credit Agreement and that all Indebtedness and
Obligations of the Borrower and the Subsidiary Guarantors hereunder shall be secured by the Liens
evidenced under the Collateral Documents and that this Agreement does not constitute a novation or
termination of the Indebtedness and Obligations existing under the Original Credit Agreement (or
serve to terminate Section 10.04 of the Original Credit Agreement or any of the Borrower’s
obligations thereunder with respect to the existing Lenders). In addition, unless specifically
amended hereby, each of the Loan Documents shall continue in full force and effect and that, from
and after the Restatement Date, all references to the “Credit Agreement” contained therein shall be
deemed to refer to this Agreement.







120









 







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



	 	 	 	 	 
	 	PATRIOT COAL CORPORATION

 	 
	 	By:  	/s/ Joseph W. Bean
 	 
	 	 	Name:  	Joseph W. Bean 	 
	 	 	Title:  	Senior Vice President — Law and Administration, General Counsel and
Corporate Secretary 	 
	 



[Patriot Coal Amended and Restated Credit Agreement]






 









 








	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as

Administrative Agent

 	 
	 	By:  	/s/ Kathleen M. Carry
 	 
	 	 	Name:  	Kathleen M. Carry 	 
	 	 	Title:  	Vice President 	 
	 



[Patriot Coal Amended and Restated Credit Agreement]









 









 








	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as a Lender, L/C Issuer and

Swing Line Lender

 	 
	 	By:  	/s/ Stephen J. Hoffman
 	 
	 	 	Name:  	Stephen J. Hoffman 	 
	 	 	Title:  	Managing Director 	 
	 



[Patriot Coal Amended and Restated Credit Agreement]








 









 








Schedule 6.21




Post-Closing Obligations





	I.	 	Within 30 days after the Restatement Date, the Administrative Agent shall have received
completed requests for information listing the financing statements referred to in
Section 4.01(a)(iii) and all other effective financing statements filed in the
jurisdictions referred to in Section 4.01(a)(iii) that name any Loan Party as
debtor, together with copies of such other financing statements.
	 
	II.	 	Within 45 days after the Restatement Date, the Administrative Agent shall have
received:






	 	A.	 	modifications to each of the Mortgages set forth on Schedule
4.01(b) (the “Mortgage Modifications”), together with:






	 	i.	 	evidence that counterparts of the Mortgage
Modifications have been duly executed, acknowledged and delivered and are
in form suitable for filing or recording in all filing or recording
offices in Kentucky and Illinois that the Administrative Agent may deem
necessary or desirable in order to maintain a valid first and subsisting
Lien on the property described therein in favor of the Administrative
Agent for the benefit of the Secured Parties and that all filing,
documentary, stamp, intangible and recording taxes and fees have been
paid;
	 
	 	ii.	 	evidence that all other actions that the
Administrative Agent may deem necessary or desirable in order to maintain
valid first and subsisting Liens on the property described in the
Mortgages have been taken;






	 	B.	 	the executed opinions of each of Gordon & Gordon, PSC and Ziemer,
Stayman, Weitzel & Shoulders, LLP local counsel to the Loan Parties in Kentucky and
Illinois, respectively, addressed to the Administrative Agent and each of the other
Secured Parties, as to the enforceability of the Mortgages as modified by the
Mortgage Modifications and such other customary and related matters in connection
therewith and herewith as the Administrative Agent may reasonably request;
	 
	 	C.	 	if requested by the Administrative Agent, an opinion of counsel from
West Virginia counsel to the Loan Parties regarding the status of the Liens in
favor of the Administrative Agent with respect to Loan Parties incorporated or
organized in West Virginia and certain customary related matters;
	 
	 	D.	 	notwithstanding anything to the contrary in Section (II) of
this Schedule 6.21, if any of the Mortgages set forth on Schedule
4.01(b) constitute leasehold mortgages or leasehold deeds of trust and the
terms of such lease (or applicable state law, if such lease is silent on the issue)
prohibit a mortgage thereof, then the Borrower shall only be required to use
commercially reasonable efforts to deliver Mortgage Modifications, including any
legal opinion in connection therewith as required




 









 






	 	 	 	hereby, to the Administrative Agent within 45 days after the Restatement Date; and






	III.	 	Within 60 days after the Restatement Date (or such longer period as the
Administrative Agent may approve in its reasonable discretion):






	 	A.	 	the Administrative Agent shall have received the results of all lien
searches that have not been completed as of the Restatement Date; and
	 
	 	B.	 	the Borrower or its designee shall have filed termination statements
and/or amendments in form appropriate for filing under the Uniform Commercial Code
of all jurisdictions that the Administrative Agent may deem necessary with respect
to any of the items set forth on Schedule 7.01 (in the form delivered as of
the Restatement Date) as deemed reasonably necessary by the Administrative Agent in
consultation with the Borrower or with respect to any other Liens set forth in the
lien search results required by Section III.A of this Schedule 6.21
and not otherwise permitted to be outstanding under the terms of this Agreement, or
otherwise in order to maintain perfection and priority of the Liens created under
the Security Agreement, covering the Collateral described in the Security
Agreement.






	IV.	 	Within 5 Business Days after the Borrower has satisfied its obligations as required
by Section III of this Schedule 6.21, the Administrative Agent shall have
received an amended or supplemented Schedule 7.01 to reflect the results of the
outstanding lien searches and related requests contemplated by Section III of
this Schedule 6.21.
	 
	V.	 	Within 2 days after the Restatement Date, the Administrative Agent shall have received
the executed opinion of Morris, Nichols, Arsht & Tunnel LLP, special Delaware counsel to
the Loan Parties, addressed to the Administrative Agent and each of the other Secured
Parties, as to certain matters concerning the Loan Parties organized in the State of
Delaware and certain of the Loan Documents as the Administrative Agent may reasonably
request.