information is clearly identified at the time of delivery as
confidential.
Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the
104
confidentiality of such Information as such Person would accord to its own
confidential information.
EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN
SECTION 9.12(a) FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL
NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND ITS RELATED PARTIES OR THEIR
RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES
REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE
SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND
APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE
BORROWER OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF
ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH
MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER, THE CREDIT
PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES.
ACCORDINGLY,
EACH LENDER REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS
IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE
INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH
ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.
Section 9.13.
PATRIOT Act.
Each Lender hereby notifies the Borrower that
pursuant to the requirements of the PATRIOT Act, it is required to obtain,
verify and record information that identifies the Borrower, which information
includes the name and address of the Borrower and other information that will
allow such Lender to identify the Borrower in accordance with the PATRIOT Act.
105
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
CLOUD PEAK ENERGY RESOURCES LLC, as Borrower
By:
/s/ Colin Marshall
Name:
Colin Marshall
Title:
President & CEO
[Signature Page to Credit Agreement]
MORGAN STANLEY SENIOR FUNDING, INC., as a Lender and as Administrative Agent and
Swingline Lender
By:
/s/ Peter Zippelius
Name:
Peter Zippelius
Title:
Vice President
[Signature Page to Credit Agreement]
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Lender
By:
/s/ Rianka Mohan
Name:
Rianka Mohan
Title:
Vice President
By:
/s/ Christopher Reo Day
Name:
Christopher Reo Day
Title:
Assocaiate
[Signature Page to Credit Agreement]
ROYAL BANK OF CANADA,
as Lender
By:
/s/ Jason S. York
Name:
Jason S. York
Title:
Authorized Signatory
[Signature Page to Credit Agreement]
CALYON NEW YORK BRANCH
as Lender
By:
/s/ Ghislain Descamps
Name:
Ghislain descamps
Title:
Director
CALYON NEW YORK BRANCH
as Lender
By:
/s/ Elvis Grgurovic
Name:
Elvis Grgurovic
Title:
Director
[SIGNATURE PAGE to CREDIT AGREEMENT]
JPMorgan Chase Bank, N.A.
as Lender
By:
/s/ Peter S. Predun
Name:
Peter S. Predun
Title:
Executive Director
[SIGNATURE PAGE to CREDIT AGREEMENT]
The Bank of Nova Scotia
as Lender
By: