EXECUTION VERSION
FINANCING
AGREEMENT
Dated as of December 27, 2017
by and among
RHINO RESOURCE PARTNERS LP,
as Parent,
RHINO
ENERGY LLC AND EACH SUBSIDIARY OF RHINO ENERGY LLC
LISTED AS A BORROWER ON THE SIGNATURE PAGES HERETO,
as Borrowers,
PARENT AND EACH SUBSIDIARY OF PARENT LISTED AS A GUARANTOR ON
THE SIGNATURE PAGES HERETO,
as Guarantors,
THE LENDERS FROM TIME TO TIME PARTY HERETO,
as Lenders,
CORTLAND CAPITAL MARKET SERVICES LLC,
as Collateral Agent and Administrative Agent,
and
CB
AGENT SERVICES LLC,
as Origination Agent
TABLE
OF CONTENTS
|
Page |
| ARTICLE
I DEFINITIONS; CERTAIN TERMS |
1 |
| Section
1.01 |
Definitions |
1 |
| Section
1.02 |
Terms
Generally |
45 |
| Section
1.03 |
Certain
Matters of Construction |
46 |
| Section
1.04 |
Accounting
and Other Terms |
46 |
| Section
1.05 |
Time
References |
47 |
| |
|
|
| ARTICLE
II THE LOANS |
47 |
| Section
2.01 |
Commitments |
47 |
| Section
2.02 |
Making
the Loans |
48 |
| Section
2.03 |
Repayment
of Loans; Evidence of Debt |
49 |
| Section
2.04 |
Interest |
50 |
| Section
2.05 |
Reduction
of Commitment; Prepayment of Loans |
51 |
| Section
2.06 |
Fees |
54 |
| Section
2.07 |
LIBOR
Option |
55 |
| Section
2.08 |
Funding
Losses |
57 |
| Section
2.09 |
Taxes |
57 |
| Section
2.10 |
Increased
Costs and Reduced Return |
60 |
| Section
2.11 |
Changes
in Law; Impracticability or Illegality |
62 |
| |
|
|
| ARTICLE
III INTENTIONALLY OMITTED |
63 |
| |
|
| ARTICLE
IV APPLICATION OF PAYMENTS; DEFAULTING LENDERS; JOINT AND SEVERAL LIABILITY OF BORROWERS |
63 |
| Section
4.01 |
Payments;
Computations and Statements |
63 |
| Section
4.02 |
Sharing
of Payments |
64 |
| Section
4.03 |
Apportionment
of Payments |
64 |
| Section
4.04 |
Defaulting
Lenders |
65 |
| Section
4.05 |
Administrative
Borrower; Joint and Several Liability of the Borrowers |
66 |
| |
|
| ARTICLE
V CONDITIONS TO LOANS |
68 |
| Section
5.01 |
Conditions
Precedent to Effectiveness |
68 |
| Section
5.02 |
Conditions
Precedent to Delayed Draw Loans |
71 |
| |
|
|
| ARTICLE
VI REPRESENTATIONS AND WARRANTIES |
73
|
| Section
6.01 |
Representations
and Warranties |
73 |
| |
|
|
| ARTICLE
VII COVENANTS OF THE LOAN PARTIES |
81 |
| Section
7.01 |
Affirmative
Covenants |
81 |
| Section
7.02 |
Negative
Covenants |
94 |
| Section
7.03 |
Financial
Covenants |
100 |
| |
|
|
| ARTICLE
VIII CASH MANAGEMENT ARRANGEMENTS AND OTHER COLLATERAL MATTERS |
100 |
| Section
8.01 |
Cash
Management Arrangements |
100 |
| ARTICLE
IX EVENTS OF DEFAULT |
101 |
| Section
9.01 |
Events
of Default |
101 |
| |
|
|
| ARTICLE
X AGENTS |
105 |
| Section
10.01 |
Appointment |
105 |
| Section
10.02 |
Nature
of Duties; Delegation |
106 |
| Section
10.03 |
Rights,
Exculpation, Etc |
107 |
| Section
10.04 |
Reliance |
108 |
| Section
10.05 |
Indemnification |
108 |
| Section
10.06 |
Agents
Individually |
108 |
| Section
10.07 |
Successor
Agent |
108 |
| Section
10.08 |
Collateral
Matters |
109 |
| Section
10.09 |
Agency
for Perfection |
111 |
| Section
10.10 |
No
Reliance on any Agent’s Customer Identification Program. |
111 |
| Section
10.11 |
No
Third Party Beneficiaries |
111 |
| Section
10.12 |
No
Fiduciary Relationship |
111 |
| Section
10.13 |
Reports;
Confidentiality; Disclaimers |
112 |
| Section
10.14 |
Collateral
Custodian |
112 |
| Section
10.15 |
Collateral
Agent May File Proofs of Claim |
113 |
| Section
10.16 |
Origination
Agent as Advisor. |
113 |
| Section
10.17 |
Reserves.
|
114 |
| |
|
|
| ARTICLE
XI GUARANTY |
114 |
| Section
11.01 |
Guaranty |
114 |
| Section
11.02 |
Guaranty
Absolute |
114 |
| Section
11.03 |
Waiver |
115 |
| Section
11.04 |
Continuing
Guaranty; Assignments |
116 |
| Section
11.05 |
Subrogation |
116 |
| Section
11.06 |
Contribution |
117 |
| |
|
|
| ARTICLE
XII MISCELLANEOUS |
117 |
| Section
12.01 |
Notices,
Etc |
117 |
| Section
12.02 |
Amendments,
Etc |
120 |
| Section
12.03 |
No
Waiver; Remedies, Etc |
121 |
| Section
12.04 |
Expenses;
Taxes; Attorneys’ Fees |
122 |
| Section
12.05 |
Right
of Set-off |
123 |
| Section
12.06 |
Severability |
123 |
| Section
12.07 |
Assignments
and Participations |
123 |
| Section
12.08 |
Counterparts |
127 |
| Section
12.09 |
GOVERNING
LAW |
127 |
| Section
12.10 |
CONSENT
TO JURISDICTION; SERVICE OF PROCESS AND VENUE |
128 |
| Section
12.11 |
WAIVER
OF JURY TRIAL, ETC |
129 |
| Section
12.12 |
Consent
by the Agents and Lenders |
129 |
| Section
12.13 |
No
Party Deemed Drafter |
129 |
| Section
12.14 |
Reinstatement;
Certain Payments |
129 |
| Section
12.15 |
Indemnification;
Limitation of Liability for Certain Damages |
130 |
| Section
12.16 |
Records |
131 |
| Section
12.17 |
Binding
Effect |
131 |
| Section
12.18 |
Highest
Lawful Rate |
131 |
| Section
12.19 |
Confidentiality |
132 |
| Section
12.20 |
Disclosure |
133 |
| Section
12.21 |
Integration |
133 |
| Section
12.22 |
USA
PATRIOT Act |
133 |
SCHEDULE
AND EXHIBITS
| Schedule
1.01(A) |
Lenders
and Lenders’ Commitments |
| Schedule
1.01(B) |
Facilities |
| Schedule
1.01(C) |
Locations |
| Schedule
1.01(D) |
Above
Ground Equipment |
| Schedule
1.01(E) |
Below
Ground Equipment |
| Schedule
1.01(F) |
Production
Plant Components |
| Schedule
1.01(G) |
Securities |
| Schedule
6.01(e) |
Capitalization;
Subsidiaries |
| Schedule
6.01(f) |
Litigation |
| Schedule
6.01(i) |
ERISA |
| Schedule
6.01(l) |
Nature
of Business |
| Schedule
6.01(o)(1) |
Real
Property |
| Schedule
6.01(o)(2) |
Material
Leases |
| Schedule
6.01(q) |
Environmental
Matters |
| Schedule
6.01(r) |
Insurance |
| Schedule
6.01(u) |
Intellectual
Property |
| Schedule
6.01(v) |
Material
Contracts |
| Schedule
7.01(s) |
Title
Opinions |
| Schedule
7.01(v) |
Post-Closing
Mortgages and Required Lessor Consents |
| Schedule
7.02(a) |
Existing
Liens |
| Schedule
7.02(b) |
Existing
Indebtedness |
| Schedule
7.02(e) |
Existing
Investments |
| Schedule
7.02(k) |
Limitations
on Dividends and Other Payment Restrictions |
| Schedule
8.01 |
Cash
Management Accounts |
| Exhibit
A |
Form
of Joinder Agreement |
| Exhibit
B |
Form
of Assignment and Acceptance |
| Exhibit
C |
Form
of Notice of Borrowing |
| Exhibit
D |
Form
of LIBOR Notice |
| Exhibit
E |
Form
of Collateral Coverage Amount Certificate |
| Exhibit
F |
Form
of Note |
FINANCING
AGREEMENT
Financing
Agreement, dated as of December 27, 2017, by and among Rhino Resource Partners LP, a Delaware limited partnership (the ”Parent”),
Rhino Energy LLC, a Delaware limited liability company (“Rhino”), each subsidiary of Rhino listed as a “Borrower”
on the signature pages hereto (together with Rhino, each a “Borrower” and collectively, the “Borrowers”),
each subsidiary of the Parent listed as a “Guarantor” on the signature pages hereto (together with the Parent
and each other Person that executes a joinder agreement and becomes a “Guarantor” hereunder, each a “Guarantor”
and collectively, the “Guarantors”), the lenders from time to time party hereto (each a “Lender”
and collectively, the ”Lenders”), Cortland Capital Market Services LLC (“Cortland”), as
collateral agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the ”Collateral
Agent”), Cortland, as administrative agent for the Lenders (in such capacity, together with its successors and assigns
in such capacity, the ”Administrative Agent”) and CB Agent Services LLC, as origination agent for the Lenders
(in such capacity, together with its successors and permitted assigns in such capacity, the “Origination Agent”
and together with the Collateral Agent and the Administrative Agent, each an “Agent” and collectively, the
“Agents”).
RECITALS
The
Borrowers have asked the Lenders to extend credit to the Borrowers consisting of a multi-draw term loan in the aggregate principal
amount of $80,000,000. The proceeds of the term loan shall be used to refinance existing indebtedness of the Borrowers, for general
working capital purposes of the Borrowers and to pay fees and expenses related to this Agreement. The Lenders are severally, and
not jointly, willing to extend such credit to the Borrowers subject to the terms and conditions hereinafter set forth.
In
consideration of the premises and the covenants and agreements contained herein, the parties hereto agree as follows:
ARTICLE
I
DEFINITIONS; CERTAIN TERMS
Section
1.01 Definitions. As used in this Agreement, the following terms shall have the respective meanings indicated below:
“Above
Ground Equipment” means the equipment set forth on Schedule 1.01(D), as such schedule is updated from time to time with
the written approval of the Origination Agent after receipt of a Qualified Appraisal.
“Account
Debtor” means, with respect to any Person, each debtor, customer or obligor in any way obligated on or in connection
with any Account of such Person.
“Acquisition”
means the acquisition (whether by means of a merger, consolidation or otherwise) of all of the Equity Interests of any Person
or all or substantially all of the assets of (or any division or business line of) any Person.
“Action”
has the meaning specified therefor in Section 12.12.
“Administrative
Agent” has the meaning specified therefor in the preamble hereto.
“Administrative
Agent’s Account” means an account at a bank designated by the Administrative Agent from time to time as the account
into which the Loan Parties shall make all payments to the Administrative Agent for the benefit of the Agents and the Lenders
under this Agreement and the other Loan Documents.
“Administrative
Borrower” has the meaning specified therefor in Section 4.05.
“Affiliate”
means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries, controls,
is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person
means the power, directly or indirectly, either to (a) vote 10% or more of the Equity Interests having ordinary voting power for
the election of members of the Board of Directors of such Person or (b) direct or cause the direction of the management and policies
of such Person whether by contract or otherwise. Notwithstanding anything herein to the contrary, in no event shall any Agent
or any Lender be considered an “Affiliate” of any Loan Party.
“Agent”
has the meaning specified therefor in the preamble hereto.
“Agreement”
means this Financing Agreement, including all amendments, modifications and supplements and any exhibits or schedules to any of
the foregoing, and shall refer to the Agreement as the same may be in effect at the time such reference becomes operative.
“Annual
Production Amount” has the meaning specified therefor in Section 7.01(r).
“Anti-Corruption
Laws” has the meaning specified therefor in Section 6.01(z).
“Anti-Money
Laundering and Anti-Terrorism Laws” means any Requirement of Law relating to terrorism, economic sanctions or money
laundering, including, without limitation, (a) the Money Laundering Control Act of 1986 (i.e., 18 U.S.C. §§ 1956
and 1957), (b) the Bank Secrecy Act of 1970 (31 U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and
1951-1959), and the implementing regulations promulgated thereunder, (c) the USA PATRIOT Act and the implementing regulations
promulgated thereunder, (d) the laws, regulations and Executive Orders administered by the United States Department of the Treasury’s
Office of Foreign Assets Control (“OFAC”), (e) any law prohibiting or directed against terrorist activities
or the financing or support of terrorist activities (e.g., 18 U.S.C. §§ 2339A and 2339B), and (f) any similar
laws enacted in the United States or any other jurisdictions in which the parties to this Agreement operate, as any of the foregoing
laws have been, or shall hereafter be, amended, renewed, extended, or replaced and all other present and future legal requirements
of any Governmental Authority governing, addressing, relating to, or attempting to eliminate, terrorist acts and acts of war and
any regulations promulgated pursuant thereto.
“Applicable
Collateral Coverage Limit” means, at any time, the following amounts: (i) with respect to clause (a)(i) of the definition
of Collateral Coverage Amount, 50% of the aggregate outstanding principal amount of the Term Loan, (ii) with respect to clause
(a)(ii) of the definition of Collateral Coverage Amount, 25% of the aggregate outstanding principal amount of the Term Loan, (iii)
with respect to clause (a)(iii) of the definition of Collateral Coverage Amount, 15% of the aggregate outstanding principal amount
of the Term Loan, (iv) with respect to clause (a)(iv) of the definition of Collateral Coverage Amount, 5% of the aggregate outstanding
principal amount of the Term Loan, (v) with respect to clause (a)(v) of the definition of Collateral Coverage Amount, 5% of the
aggregate outstanding principal amount of the Term Loan, (vi) with respect to clause (a)(vi) of the definition of Collateral Coverage
Amount, 30% of the aggregate outstanding principal amount of the Term Loan, and (vii) with respect to clauses (a)(vii) and (a)(viii)
of the definition of Collateral Coverage Amount collectively, 20% of the aggregate outstanding principal amount of the Term Loan.
“Applicable
Depreciation Percentage” means, as of any date of determination, (i) with respect to the first month ended after the
date a Qualified Appraisal is received by the Origination Agent, 0.5%, (ii) with respect to the second month ended after the date
a Qualified Appraisal is received by the Origination Agent, 1.0%, (iii) with respect to the third month ended after the date a
Qualified Appraisal is received by the Origination Agent, 1.5%, (iv) with respect to the fourth month ended after the date a Qualified
Appraisal is received by the Origination Agent, 2.0%, (v) with respect to the fifth month ended after the date a Qualified Appraisal
is received by the Origination Agent, 2.5%, (vi) with respect to the sixth month ended after the date a Qualified Appraisal is
received by the Origination Agent, 3.0%, (vii) with respect to the seventh month ended after the date a Qualified Appraisal is
received by the Origination Agent, 3.5%, (viii) with respect to the eighth month ended after the date a Qualified Appraisal is
received by the Origination Agent, 4.0%, (ix) with respect to the ninth month ended after the date a Qualified Appraisal is received
by the Origination Agent, 4.5%, (x) with respect to the ten month ended after the date a Qualified Appraisal is received by the
Origination Agent, 5.0%, (xi) with respect to the eleventh month ended after the date a Qualified Appraisal is received by the
Origination Agent, 5.5% and (xii) with respect to the twelfth month ended after the date a Qualified Appraisal is received by
the Origination Agent, 6.0%.
“Applicable
Margin” means, as of any date of determination, with respect to the interest rate of (a) any Reference Rate Loan or
any portion thereof, 9.00% per annum (or 12.00% per annum if the Borrowers have elected the PIK Option), and (b) any LIBOR Rate
Loan or any portion thereof, 10.00% per annum (or 13.00% per annum if the Borrowers have elected the PIK Option).
“Applicable
Premium” means, as of the date of the occurrence of an Applicable Premium Trigger Event:
(a)
during the period of time from and after the Effective Date up to and including the date that is the twelve (12) month anniversary
of the Effective Date, an amount equal to the Make-Whole Amount; and
(b)
thereafter, zero.
“Applicable
Premium Trigger Event” means
(a)
any payment by any Loan Party of all, or any part, of the principal balance of any Term Loan for any reason (including, without
limitation, any optional prepayment or mandatory prepayment) whether before or after (i) the occurrence of an Event of Default,
or (ii) the commencement of any Insolvency Proceeding, and notwithstanding any acceleration (for any reason) of the Obligations;
(b)
the acceleration of the Obligations for any reason, including, without limitation, acceleration in accordance with Section 9.01,
including as a result of the commencement of an Insolvency Proceeding;
(c)
the satisfaction, release, payment, restructuring, reorganization, replacement, reinstatement, defeasance or compromise of any
of the Obligations in any Insolvency Proceeding, foreclosure (whether by power of judicial proceeding or otherwise) or deed in
lieu of foreclosure or the making of a distribution of any kind in any Insolvency Proceeding to the Administrative Agent, for
the account of the Lenders in full or partial satisfaction of the Obligations;
(d)
any reduction of the Total Delayed Draw Term Loan Commitment (other than any reduction pursuant to Section 2.01(b) or Section
2.05(a)); or
(e)
the termination of this Agreement for any reason.
“Appraised
Value” means the fair market value (net of liquidation expenses) of any Real Property determined by the most recent
Qualified Appraisal.
“Assignment
and Acceptance” means an assignment and acceptance entered into by an assigning Lender and an assignee, and accepted
by the Administrative Agent, in accordance with Section 12.07 hereof and substantially in the form of Exhibit B hereto or such
other form acceptable to the Administrative Agent.
“Authorized
Officer” means, with respect to any Person, the chief executive officer, chief operating officer, chief financial officer,
treasurer or other financial officer performing similar functions, president or vice president of such Person.
“Bankruptcy
Code” means Title 11 of the United States Code, as amended from time to time and any successor statute or any similar
federal or state law for the relief of debtors.
“Below
Ground Equipment” means the equipment set forth on Schedule 1.01(E), as such schedule is updated from time to time with
the approval of the Origination Agent after receipt of a Qualified Appraisal.
“Blocked
Person” means any Person:
(a)
that (i) is identified on the list of “Specially Designated Nationals and Blocked Persons” published by OFAC; (ii)
resides, is organized or chartered, or has a place of business in a country or territory that is the subject of an OFAC Sanctions
Program; or (iii) a U.S. Person is prohibited from dealing or engaging in a transaction with under any of the Anti-Money Laundering
and Anti-Terrorism Laws; and
(b)
that is owned or controlled by, or that owns or controls, or that is acting for or on behalf of, any Person described in clause
(a) above.
“Board”
means the Board of Governors of the Federal Reserve System of the United States (or any successor).
“Board
of Directors” means with respect to (a) any corporation, the board of directors of the corporation or any committee
thereof duly authorized to act on behalf of such board, (b) a partnership, the board of directors of the general partner of the
partnership, (c) a limited liability company, the managing member or members or any controlling committee or board of directors
of such company or the sole member or the managing member thereof, and (d) any other Person, the board or committee of such Person
serving a similar function.
“Book
Value” means, with respect to any Inventory of any Person, the lower of (a) cost (as reflected in the general ledger
of such Person before customary (but not extraordinary) reserves established by such Person in good faith and in accordance with
GAAP) and (b) market value (as reflected by adjusting benchmark prices published by Coal Desk or S&P Global Platts in a manner
acceptable to the Origination Agent for relevant quality and locational differences of such Inventory, or by valuing the Inventory
in any other method acceptable to the Origination Agent), in each case, determined in accordance with GAAP calculated on a first-in
first-out basis.
“Borrower”
has the meaning specified therefor in the preamble hereto.
“Business
Day” means (a) for all purposes other than as described in clause (b) below, any day other than a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required to close, and (b) with respect to the borrowing,
payment or continuation of, or determination of interest rate on, LIBOR Rate Loans, any day that is a Business Day described in
clause (a) above and on which dealings in Dollars may be carried on in the interbank eurodollar markets in New York City and London.
“Capital
Expenditures” means Capital Expenditures-Expansion and Capital Expenditures-Maintenance.
“Capital
Expenditures-Expansion” means, with respect to any Person for any period, the aggregate of all expenditures by such
Person and its Subsidiaries during such period that in accordance with GAAP are or should be included in “property, plant
and equipment” or in a similar fixed asset account on its balance sheet, whether such expenditures are paid in cash or financed,
including all Capitalized Lease Obligations, obligations under synthetic leases and capitalized software costs that are paid or
due and payable during such period, in each case, solely with respect to such expenditures made with respect to a location that
is not being actively mined as of the Effective Date and if such expenditures are not classified as Capital Expenditures-Maintenance.
“Capital
Expenditures-Maintenance” means, with respect to any Person for any period, the aggregate of all expenditures by such
Person and its Subsidiaries during such period that in accordance with GAAP are or should be included in “property, plant
and equipment” or in a similar fixed asset account on its balance sheet, whether such expenditures are paid in cash or financed,
including all Capitalized Lease Obligations, obligations under synthetic leases and capitalized software costs that are paid or
due and payable during such period and if such expenditures are made to maintain, including for a period longer than the short-term,
the operating capacity of the Parent and its Subsidiaries, in each case, solely with respect to such expenditures made with respect
to a location that is being actively mined as of the Effective Date; provided, that the term “Capital Expenditures-Maintenance”
shall not include any such expenditures which constitute (i) expenditures by a Loan Party made in connection with the replacement,
substitution or restoration of such Loan Party’s assets pursuant to Section 2.05(c)(v) from
the Net Cash Proceeds of Dispositions and Extraordinary Receipts consisting of insurance proceeds or condemnation awards,
(ii) expenditures financed with the proceeds received from the sale or issuance of Equity Interests to a Permitted Holder or any
other Person permitted under this Agreement so long as (A) the Borrowers are not required to make a prepayment of the Loans with
such proceeds pursuant to Section 2.05(c)(iii) and (B) such proceeds are not commingled with any Loan Party’s funds and
are deposited in an account subject to a Control Agreement and used exclusively to fund such expenditures, (iii) expenditures
that are accounted for as capital expenditures of such Person and that actually are paid for by a third party (excluding any Loan
Party) and for which no Loan Party has provided or is required to provide or incur, directly or indirectly, any consideration
or obligation to such third party or any other person (whether before, during or after such period), and (iv) the purchase price
of equipment that is purchased substantially contemporaneously with the trade in of existing equipment to the extent that the
gross amount of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded
in at such time. For the avoidance of doubt, “Capital Expenditures-Maintenance” shall include all expenditures made,
directly or indirectly, by such Person or any of its Subsidiaries during such period for mine development.
“Capitalized
Lease” means, with respect to any Person, any lease of (or other arrangement conveying the right to use) real or personal
property by such Person as lessee that is required under GAAP to be capitalized on the balance sheet of such Person.
“Capitalized
Lease Obligations” means, with respect to any Person, obligations of such Person and its Subsidiaries under Capitalized
Leases, and, for purposes hereof, the amount of any such obligation shall be the capitalized amount thereof determined in accordance
with GAAP.
“Cash
Equivalents” means (a) marketable direct obligations issued or unconditionally guaranteed by the United States Government
or issued by any agency thereof and backed by the full faith and credit of the United States, in each case, maturing within six
months from the date of acquisition thereof; (b) commercial paper, maturing not more than 270 days after the date of issue rated
P-1 by Moody’s or A-1 by Standard & Poor’s; (c) certificates of deposit maturing not more than 270 days after
the date of issue, issued by commercial banking institutions and money market or demand deposit accounts maintained at commercial
banking institutions, each of which is a member of the Federal Reserve System and has a combined capital and surplus and undivided
profits of not less than $500,000,000; (d) repurchase agreements having maturities of not more than 90 days from the date of acquisition
which are entered into with major money center banks included in the commercial banking institutions described in clause (c) above
and which are secured by readily marketable direct obligations of the United States Government or any agency thereof; (e) money
market accounts maintained with mutual funds having assets in excess of $2,500,000,000, which assets are primarily comprised of
Cash Equivalents described in another clause of this definition; and (f) marketable tax exempt securities rated A or higher by
Moody’s or A+ or higher by Standard & Poor’s, in each case, maturing within 270 days from the date of acquisition
thereof.
“Cash
Management Accounts” means the bank accounts of each Loan Party maintained at one or more Cash Management Banks listed
on Schedule 8.01.
“Cash
Management Bank” has the meaning specified therefor in Section 8.01(a).
“CERCLIS”
means the Comprehensive Environmental Response, Compensation, and Liability Information System maintained by the United States
Environmental Protection Agency.
“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, judicial ruling, judgment or treaty, (b) any change in any law, rule, regulation or treaty
or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making
or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority;
provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection
Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules,
guidelines or directives concerning capital adequacy promulgated by the Bank for International Settlements, the Basel Committee
on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities shall, in
each case, be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“Change
of Control” means each occurrence of any of the following:
(a)
the Permitted Holder ceases to beneficially and of record own and control, directly or indirectly, 100% on a fully diluted basis
of the aggregate outstanding voting or economic power of the Equity Interests of the General Partner;
(b)
the General Partner ceases to be the sole general partner of the Parent with the power to manage and control the Parent;
(c)
the Permitted Holder ceases to beneficially and of record own and control, directly or indirectly, at least 50.1% on a fully diluted
basis of the aggregate outstanding economic power of the Equity Interests of the Parent;
(d)
the Parent shall cease to have beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of 100% of the aggregate
voting or economic power of the Equity Interests of each other Loan Party and each of its Subsidiaries (other than in connection
with any transaction permitted pursuant to Section 7.02(c)(i)), free and clear of all Liens (other than Permitted Specified Liens);
(e)
Richard Boone shall cease to be involved in the day to day operations and management of the business of the Parent other than
due to his death or incapacity, and a successor reasonably acceptable to the Origination Agent and the Required Lenders is not
appointed on terms reasonably acceptable to the Origination Agent and the Required Lenders within 30 days of such cessation of
involvement; or
(f)
a “Change of Control” (or any comparable term or provision) under or with respect to any of the Equity Interests or
Indebtedness of the Parent or any of its Subsidiaries.
“Coal
Leases” means leases and license agreements providing for the acquisition, leasing and/or licensing of rights relating
to coal reserves and the mining thereof.
“Coal
Reserve Base” has the meaning specified therefor in Section 7.01(r).
“Coal
Reserves” shall mean any and all coal reserves (expressly excluding inventory) which could be economically and legally
extracted or produced at the time of determination for which: (a) quantity is computed from dimensions revealed in outcrops, trenches,
workings or drill holes; grade and/or quality are computed from the results of detailed sampling and (b) the sites for inspection,
sampling, and measurement are either: (i) spaced so closely and the geologic character is so well defined that size, shape, depth,
and mineral content of coal reserves are well-established or (ii) farther apart or are otherwise less adequately spaced, and a
degree of assurance, although lower than that for proved reserves as described in the preceding clause (i), is high enough to
assume continuity between points of observation, in any case by available exploration data and which meet minimum industry accepted
standards, and in any case wheresoever located and whether now owned or hereafter acquired by any Loan Party.
“Collateral”
means all of the property and assets and all interests therein and proceeds thereof now owned or hereafter acquired by any Person
upon which a Lien is granted or purported to be granted by such Person as security for all or any part of the Obligations.
“Collateral
Agent” has the meaning specified therefor in the preamble hereto.
“Collateral
Coverage Amount” means, at any time, the difference between (a) the sum of (i) up to 70% of the value of the Net Amount
of Eligible Accounts at such time minus the Dilution Reserve plus (ii) up to 90% of the Book Value of the Eligible Inventory
at such time plus (iii) up to 100% of the aggregate amount of Qualified Cash plus (iv) up to 50% of the Market Value
of Eligible Securities plus (v) 50% of the difference between (x) the Appraised Value of the Eligible Real Property and
(y) the Depreciation Amount at such time plus (vi) 75% of the difference between (x) the Net Orderly Liquidation Value
of Eligible Above Ground Equipment and (y) the Depreciation Amount at such time plus (vii) 65% of the difference between
(x) the Net Orderly Liquidation Value of the Eligible Below Ground Equipment and (y) the Depreciation Amount at such time plus
(viii) 65% of the difference between (x) the Net Orderly Liquidation Value of the Eligible Production Plant Components and
(y) the Depreciation Amount at such time and (b) such reserves (other than the Dilution Reserve) as the Origination Agent may
deem appropriate in the exercise of its business judgment based upon the lending practices of the Origination Agent. Notwithstanding
the foregoing, for purposes of calculating the Collateral Coverage Amount, at no time shall the amounts in clauses (a)(i) through
(a)(viii) above exceed the Applicable Collateral Coverage Limit.
“Collateral
Coverage Amount Certificate” means a certificate signed by an Authorized Officer of the Administrative Borrower and
setting forth the calculation of the Collateral Coverage Amount in compliance with Section 7.01(a)(vi), substantially in the form
of Exhibit E.
“Collections”
means all cash, checks, notes, instruments, and other items of payment (including insurance proceeds, proceeds of cash sales,
rental proceeds, and tax refunds).
“Commitments”
means, with respect to each Lender, such Lender’s Term Loan Commitment.
“Commodity
Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor
statute.
“Compliance
Certificate” has the meaning assigned to such term in Section 7.01(a)(iv).
“Consolidated
EBITDA” means, with respect to any Person for any period:
| (a) | the
Consolidated Net Income of such Person for such period, |
plus
| (b) | without
duplication, the sum of the following amounts for such period to the extent deducted
in the calculation of Consolidated Net Income for such period: |
(i)
any provision for United States federal income taxes or other taxes measured by net income,
(ii)
Consolidated Net Interest Expense,
(iii)
any loss from extraordinary items,
(iv)
any depreciation and amortization expense,
(v)
any aggregate net loss on the Disposition of property (other than accounts and Inventory) outside the ordinary course of business,
and
(vi)
any other non-cash expenditure, charge or loss for such period (other than any non-cash expenditure, charge or loss relating to
write-offs, write-downs or reserves with respect to accounts and Inventory),
Minus
(c)
without duplication, the sum of the following amounts for such period to the extent included in the calculation of such Consolidated
Net Income for such period:
(i)
any credit for United States federal income taxes or other taxes measured by net income,
(ii)
any gain from extraordinary items,
(iii)
any aggregate net gain from the Disposition of property (other than accounts and Inventory) outside the ordinary course of business,
and
(iv)
any other non-cash gain, including any reversal of a charge referred to in clause (b)(vi) above by reason of a decrease in the
value of any Equity Interest;
in
each case, determined on a consolidated basis in accordance with GAAP.
“Consolidated
Net Income” means, with respect to any Person, for any period, the consolidated net income (or loss) of such Person
and its Subsidiaries for such period; provided, however, that the following shall be excluded: (a) the net income
of any other Person in which such Person or one of its Subsidiaries has a joint interest with a third-party (which interest does
not cause the net income of such other Person to be consolidated into the net income of such Person), except to the extent of
the amount of dividends or distributions paid to such Person or Subsidiary, (b) the net income of any Subsidiary of such Person
that is, on the last day of such period, subject to any restriction or limitation on the payment of dividends or the making of
other distributions, to the extent of such restriction or limitation, and (c) the net income of any other Person arising prior
to such other Person becoming a Subsidiary of such Person or merging or consolidating into such Person or its Subsidiaries.
“Consolidated
Net Interest Expense” means, with respect to any Person for any period, (a) gross interest expense of such Person and
its Subsidiaries for such period determined on a consolidated basis and in accordance with GAAP (including, without limitation,
interest expense paid to Affiliates of such Person), less (b) the sum of (i) interest income for such period and (ii) gains
for such period on Hedging Agreements (to the extent not included in interest income above and to the extent not deducted in the
calculation of gross interest expense), plus (c) the sum of (i) losses for such period on Hedging Agreements (to the extent
not included in gross interest expense) and (ii) the upfront costs or fees for such period associated with Hedging Agreements
(to the extent not included in gross interest expense), in each case, determined on a consolidated basis and in accordance with
GAAP.
“Contingent
Indemnity Obligations” means any Obligation constituting a contingent, unliquidated indemnification obligation of any
Loan Party, in each case, to the extent (a) such obligation has not accrued and is not yet due and payable and (b) no claim has
been made or is reasonably anticipated to be made with respect thereto.
“Contingent
Obligation” means, with respect to any Person, any obligation of such Person guaranteeing or intending to guarantee
any Indebtedness, leases, dividends or other obligations (“primary obligations”) of any other Person (the ”primary
obligor”) in any manner, whether directly or indirectly, including, without limitation, (a) the direct or indirect guaranty,
endorsement (other than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or
sale with recourse by such Person of the obligation of a primary obligor, (b) the obligation to make take-or-pay or similar payments,
if required, regardless of nonperformance by any other party or parties to an agreement, (c) any obligation of such 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 (A) for the purchase or payment of any such primary obligation or (B) 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, assets, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder
of such primary obligation against loss in respect thereof; provided, however, that the term “Contingent Obligation”
shall not include any product warranties extended in the ordinary course of business. The amount of any Contingent Obligation
shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation with respect to which such
Contingent Obligation is made (or, if less, the maximum amount of such primary obligation for which such Person may be liable
pursuant to the terms of the instrument evidencing such Contingent Obligation) or, if not stated or determinable, the maximum
reasonably anticipated liability with respect thereto (assuming such Person is required to perform thereunder), as determined
by such Person in good faith.
“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
Agreement” means, with respect to any deposit account, any securities account, commodity account, securities entitlement
or commodity contract, an agreement, in form and substance satisfactory to the Origination Agent and the Collateral Agent, among
the Collateral Agent, the financial institution or other Person at which such account is maintained or with which such entitlement
or contract is carried and the Loan Party maintaining such account, effective to grant “control” (as defined under
the applicable UCC) over such account to the Collateral Agent.
“Controlled
Investment Affiliate” means, as to any Person, any other Person that (a) directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person and (b) is organized by such Person primarily for the purpose of making
equity or debt investments in one or more companies. For purposes of this definition, “control” of a Person means
the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person whether by contract
or otherwise.
“Cortland”
has the meaning specified therefor in the preamble hereto.
“Current
Value” has the meaning specified therefor in Section 7.01(m).
“Debtor
Relief Law” means the Bankruptcy Code and any other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief law of the United
States or other applicable jurisdiction from time to time in effect.
“Debt
Service” means, for any period, the sum of (i) Consolidated Net Interest Expense of the Parent and its Subsidiaries
for such period, (ii) all amortization payments with respect to the Term Loan paid or required to be paid by the Loan Parties
pursuant to Section 2.03(a) of this Agreement for such period, plus (iii) all fees and expenses paid or required to be paid by
the Loan Parties pursuant to this Agreement for such period, plus (iv) the amount of Excess Cash Flow of the Parent and its Subsidiaries
for such period that is paid or required to be paid to prepay the Loans pursuant to this Agreement.
“Default”
means an event which, with the giving of notice or the lapse of time or both, would constitute an Event of Default.
“Defaulting
Lender” means any Lender that (a) has failed to (i) fund all or any portion of its Loans within 2 Business Days of the
date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Administrative
Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent
to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such
writing) has not been satisfied, or (ii) pay to the Administrative Agent or any other Lender any other amount required to be paid
by it hereunder within 2 Business Days of the date when due, (b) has notified the Administrative Borrower, or the Administrative
Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that
effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states
that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent,
together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied),
(c) has failed, within 3 Business Days after written request by the Administrative Agent or the Administrative Borrower, to confirm
in writing to the Administrative Agent and the Administrative Borrower that it will comply with its prospective funding obligations
hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of
such written confirmation by the Administrative Agent and the Administrative Borrower), or (d) has, or has a direct or indirect
parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver,
custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization
or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory
authority acting in such a capacity. Notwithstanding anything to the contrary herein, a Lender shall not be a Defaulting Lender
solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company
thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity
from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets
or permits such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements
made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under clauses (a) through
(d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon
delivery of written notice of such determination to the Administrative Borrower and each Lender.
“Delayed
Draw Pro Rata Share” means, with respect to a Lender’s obligation to make the Term Loans after the Effective Date,
the percentage obtained by dividing (i) such Lender’s Delayed Draw Term Loan Commitment, by (ii) the Total Delayed Draw
Term Loan Commitment.
“Delayed
Draw Term Loan” means, collectively, the loans made by the Lenders to the Borrowers after the Effective Date pursuant
to Section 2.01(a)(ii).
“Delayed
Draw Term Loan Commitment” means, with respect to each Lender, the commitment of such Lender to make the Term Loans
to the Borrowers after the Effective Date in the amount set forth in Schedule 1.01(A) hereto under the heading “Delayed
Draw Term Loan Commitment”, as the same may be terminated or reduced from time to time in accordance with the terms of this
Agreement.
“Delayed
Draw Term Loan Commitment Termination Date” means the earliest to occur of (i) the date the Delayed Draw Term Loan Commitments
are permanently reduced to zero pursuant to Section 2.01(b), (ii) the date of the termination of the Delayed Draw Term Loan Commitments
pursuant to Section 2.05(a) or Section 9.01 and (iii) the Final Maturity Date.
“Delayed
Draw Term Loan Lender” means a Lender with a Delayed Draw Term Loan Commitment or a Delayed Draw Term Loan.
“Depreciation
Amount” means, as of any date of determination, an amount which is calculated from the first month commencing after
the date on which the Origination Agent receives the most recent Qualified Appraisal equal to (i) the Net Orderly Liquidation
Value of the Eligible Above Ground Equipment, the Eligible Below Ground Equipment or the Eligible Production Plant Components
or the Appraised Value of the Eligible Real Property, as applicable, as set forth in the most recent Qualified Appraisal delivered
to the Origination Agent, multiplied by (ii) the Applicable Depreciation Percentage.
“Dilution”
means, as of any date of determination, a percentage, based upon the experience of the immediately prior 90 consecutive days,
that is the result of dividing the Dollar amount of (a) set-off, warranty claims, discounts, advertising allowances, credits,
or other similar items that are granted in the ordinary course of business with respect to the Loan Parties’ accounts during
such period, by (b) the Loan Parties’ billings with respect to accounts during such period.
“Dilution
Reserve” means, as of any date of determination, an amount sufficient to reduce the advance rate against Eligible Accounts
by 1 percentage point for each percentage point by which Dilution is in excess of 5.0%.
“Disbursement
Letter” means a disbursement letter, in form and substance satisfactory to the Origination Agent and the Administrative
Agent, by and among the Loan Parties, the Agents, the Lenders and the other Persons party thereto, and the related funds flow
memorandum describing the sources and uses of all cash payments in connection with the transactions contemplated to occur on the
Effective Date.
“Disposition”
means any transaction, or series of related transactions, pursuant to which any Person or any of its Subsidiaries sells, assigns,
transfers, leases, licenses (as licensor) or otherwise disposes of any property or assets (whether now owned or hereafter acquired)
to any other Person, in each case, whether or not the consideration therefor consists of cash, securities or other assets owned
by the acquiring Person. For purposes of clarification, “Disposition” shall include (a) the sale or other disposition
for value of any contracts (b) the early termination or modification of any contract resulting in the receipt by any Loan Party
or any of its Subsidiaries of a cash payment or other consideration in exchange for such event (other than payments in the ordinary
course for accrued and unpaid amounts due through the date of termination or modification) or (c), any sale of merchant accounts
(or any rights thereto (including, without limitation, any rights to any residual payment stream with respect thereto)) by any
Loan Party.
“Disqualified
Equity Interests” means any Equity Interest that, by its terms (or by the terms of any security or other Equity Interest
into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition, (a) matures or
is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset
sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject
to the prior repayment in full of the Loans and all other Obligations and the termination of the Commitments), (b) is redeemable
at the option of the holder thereof, in whole or in part, (c) provides for the scheduled payments of dividends or distributions
in cash, or (d) is convertible into or exchangeable for (i) Indebtedness or (ii) any other Equity Interests that would constitute
Disqualified Equity Interests, in each case of clauses (a) through (d), prior to the date that is six months after the Final Maturity
Date.
“Dollar,”
“Dollars” and the symbol “$” each means lawful money of the United States of America.
“Domestic
Subsidiary” means any Subsidiary that is organized and existing under the laws of the United States or any state or
commonwealth thereof or under the laws of the District of Columbia.
“Effective
Date” has the meaning specified therefor in Section 5.01.
“Effective
Date Pro Rata Share” means, with respect to a Lender’s obligation to make the Term Loans on the Effective Date,
the percentage obtained by dividing (i) such Lender’s Effective Date Term Loan Commitment, by (ii) the Total Effective Date
Term Loan Commitment.
“Effective
Date Term Loan” means the loan made by the Lenders to the Borrowers on the Effective Date pursuant to Section 2.01(a)(i).
“Effective
Date Term Loan Commitment” means, with respect to each Lender, the commitment of such Lender to make the Term Loans
to the Borrowers on the Effective Date in the amount set forth in Schedule 1.01(A) hereto under the heading “Effective Date
Term Loan Commitment”, as the same may be terminated or reduced from time to time in accordance with the terms of this Agreement.
“Eligible
Above Ground Equipment” means the Above Ground Equipment of a Loan Party which is, and at all times continue to be,
acceptable to the Origination Agent in the exercise of its reasonable business judgment. In general, Above Ground Equipment may,
in the reasonable business judgment of the Origination Agent, be deemed to be eligible if: (a) such Above Ground Equipment is
lawfully owned by a Loan Party free and clear of any existing Lien other than in favor of the Collateral Agent for the benefit
of the Agents and the Lenders and otherwise continues to be in full conformity with all representations and warranties made by
a Loan Party to the Agents and the Lenders with respect thereto in the Loan Documents; (b) such Loan Party has the right to grant
Liens on such Above Ground Equipment; (c) such Above Ground Equipment is located in one of the locations in the continental United
States listed on Schedule 1.01(C) or such other locations in the continental United States as the Origination Agent may approve
in writing from time to time and if such Above Ground Equipment is located on real property leased by a Loan Party, (x) such location
is subject to a landlord waiver duly executed by the lessor with respect to such location in form and substance satisfactory to
the Origination Agent and (y) is segregated or otherwise separately identifiable from goods of others, if any, located on such
real property; (d) such Above Ground Equipment (i) is being used in the operation of the business of such Loan Party, (ii) is
not substantially worn, damaged, defective or obsolete, and (iii) does not constitute furnishings, fixtures or parts or otherwise
is affixed to real property; (e) such Above Ground Equipment is subject to a valid and perfected first priority Lien of the Collateral
Agent; (f) such Above Ground Equipment is covered by the property insurance required by the Agreement which insurance has been
duly endorsed to the Collateral Agent; (g) such Above Ground Equipment is not subject to a lease with any Person; (h) such Above
Ground Equipment is subject to a Qualified Appraisal dated not earlier than 12 months prior to the date of determination and otherwise
acceptable to the Origination Agent in its sole discretion; and (i) such Above Ground Equipment is and at all times shall continue
to be acceptable to the Origination Agent. Notwithstanding anything to the contrary contained herein, the foregoing criteria may
be revised from time to time by the Origination Agent in the Origination Agent’s discretion to address the results of any
audit or appraisal performed by the Origination Agent from time to time after the Effective Date.
“Eligible
Accounts” means the Accounts of a Loan Party resulting from the sale of goods and performance of services by such Loan
Party which are, and at all times continue to be, acceptable to the Origination Agent in the exercise of its reasonable business
judgment. In general, an Account may, in the reasonable business judgment of the Origination Agent, be deemed to be eligible if:
(a) delivery of the merchandise or the rendition of the services has been completed with respect to such Account; (b) no return,
rejection, repossession or dispute has occurred with respect to such Account, the Account Debtor has not asserted any set-off,
defense or counterclaim with respect to such Account, and there has not occurred any extension of the time for payment with respect
to such Account without the consent of the Origination Agent, provided that, in the case of any dispute, set-off, defense
or counterclaim with respect to an Account, the portion of such Account not subject to such dispute, set-off, defense or counterclaim
will not be ineligible solely by reason of this clause (b); (c) such Account is lawfully owned by a Loan Party free and clear
of any Lien other than in favor of the Collateral Agent for the benefit of the Agents and the Lenders and otherwise continues
to be in full conformity with all representations and warranties made by a Loan Party to the Agents and the Lenders with respect
thereto in the Loan Documents; (d) such Loan Party has the right to grant Liens on such Account; (e) such Account is unconditionally
payable in Dollars within 90 days from the invoice date and is not evidenced by a promissory note, chattel paper or any other
instrument or other document unless the original of such document is in the possession of the Collateral Agent and contains all
necessary endorsements in favor of the Collateral Agent; (f) no more than 60 days have elapsed from the invoice due date and no
more than 90 days have elapsed from the invoice date with respect to such Account; (g) such Account is not due from an Affiliate
of a Loan Party; (h) such Account does not constitute an obligation of the United States or any other Governmental Authority (unless
all steps required by the Origination Agent in connection therewith, including notice to the United States Government under the
Federal Assignment of Claims Act or any action under any state statute comparable to the Federal Assignment of Claims Act, have
been duly taken in a manner satisfactory to the Origination Agent); (i) the Account Debtor (or the applicable office of the Account
Debtor) with respect to such Account is located in the continental United States, unless such Account is supported by a letter
of credit or other similar obligation satisfactory to the Origination Agent; (j) the Account Debtor with respect to such Account
is not also a supplier to or creditor of a Loan Party, unless such Account Debtor has executed a no-offset letter satisfactory
to the Origination Agent; (k) not more than 50% of the aggregate amount of all Accounts of the Account Debtor with respect to
such Account have remained unpaid 60 days past the invoice due date or 90 days past the invoice date; (l) Accounts with respect
to an Account Debtor whose total obligations owing to the Loan Parties do not exceed 20% (such percentage, as applied to a particular
Account Debtor, being subject to reduction by the Origination Agent in its reasonable business judgment if the creditworthiness
of such Account Debtor deteriorates) of all Eligible Accounts, to the extent of the obligations owing by such Account Debtor not
in excess of such percentage; (m) the Account Debtor with respect to such Account (i) has not filed a petition for bankruptcy
or any other relief under any Debtor Relief Law, (ii) has not failed, suspended business operations, become insolvent or called
a meeting of its creditors for the purpose of obtaining any financial concession or accommodation, (iii) has not had or suffered
to be appointed a receiver or a trustee for all or a significant portion of its assets or affairs or (iv) in the case of an Account
Debtor who is an individual, is not an employee of a Loan Party or any of its Affiliates and has not died or been declared incompetent;
(n) Accounts with respect to which the Account Debtor is not a Blocked Person; (o) Accounts which are owed by an Account Debtor
located in any jurisdiction which requires filing of a “Notice of Business Activities Report” or other similar report
in order to permit any Loan Party to seek judicial enforcement in such jurisdiction of payment of such Accounts, unless such Loan
Party has filed such report or qualified to do business in such jurisdiction; (p) the Account Debtor with respect to such Account
has received an invoice from a Loan Party; (q) the Origination Agent is, and continues to be, satisfied with the credit standing
of the Account Debtor in relation to the amount of credit extended and the Origination Agent believes, in its discretion, that
the prospect of collection of such Account is not impaired for any reason; and (r) the Account Debtor with respect to such Account
is (i) Javelin Global Commodities (UK) LTD or (ii) another Account Debtor located outside the continental United States with the
Origination’s Agent consent and, the aggregate total obligations owing to the Loan Parties with respect to such Accounts
described in this clause (r) do not exceed 10% of all Eligible Accounts, to the extent of the obligations owing by such Account
Debtors not in excess of such percentage.
“Eligible
Below Ground Equipment” means the Below Ground Equipment of a Loan Party which is, and at all times continue to be,
acceptable to the Origination Agent in the exercise of its reasonable business judgment. In general, Below Ground Equipment may,
in the reasonable business judgment of the Origination Agent, be deemed to be eligible if: (a) such Below Ground Equipment is
lawfully owned by a Loan Party free and clear of any existing Lien other than in favor of the Collateral Agent for the benefit
of the Agents and the Lenders and otherwise continues to be in full conformity with all representations and warranties made by
a Loan Party to the Agents and the Lenders with respect thereto in the Loan Documents; (b) such Loan Party has the right to grant
Liens on such Below Ground Equipment; (c) such Below Ground Equipment is located in one of the locations in the continental United
States listed on Schedule 1.01(C) or such other locations in the continental United States as the Origination Agent may approve
in writing from time to time and if such Below Ground Equipment is located on real property leased by a Loan Party, (x) such location
is subject to a landlord waiver duly executed by the lessor with respect to such location in form and substance satisfactory to
the Origination Agent and (y) is segregated or otherwise separately identifiable from goods of others, if any, located on such
real property; (d) such Below Ground Equipment (i) is being used in the operation of the business of such Loan Party, (ii) is
not substantially worn, damaged, defective or obsolete, and (iii) does not constitute furnishings, fixtures or parts or otherwise
is affixed to real property; (e) such Below Ground Equipment is subject to a valid and perfected first priority Lien of the Collateral
Agent; (f) such Below Ground Equipment is covered by the property insurance required by the Agreement which insurance has been
duly endorsed to the Collateral Agent; (g) such Below Ground Equipment is not subject to a lease with any Person; (h) such Below
Ground Equipment is subject to a Qualified Appraisal dated not earlier than 12 months prior to the date of determination and otherwise
acceptable to the Origination Agent in its sole discretion; and (i) such Below Ground Equipment is and at all times shall continue
to be acceptable to the Origination Agent. Notwithstanding anything to the contrary contained herein, the foregoing criteria may
be revised from time to time by the Origination Agent in the Origination Agent’s discretion to address the results of any
audit or appraisal performed by the Origination Agent from time to time after the Effective Date.
“Eligible
Inventory” means the Inventory of a Loan Party that is coal which is, and at all times continue to be, acceptable to
the Origination Agent in the exercise of its reasonable business judgment. In general, Inventory may, in the reasonable business
judgment of the Origination Agent, be deemed to be eligible if: (a) such Inventory is lawfully owned by a Loan Party free and
clear of any existing Lien other than in favor of the Collateral Agent for the benefit of the Agents and the Lenders and otherwise
continues to be in full conformity with all representations and warranties made by a Loan Party to the Agents and the Lenders
with respect thereto in the Loan Documents; (b) such Inventory is not held on consignment and may be lawfully sold; (c) a Loan
Party has the right to grant Liens on such Inventory; (d) such Inventory arose or was acquired in the ordinary course of the business
of a Loan Party and does not represent returned, damaged, obsolete or unsalable goods; (e) no Account or document of title has
been created or issued with respect to such Inventory; (f) such Inventory is located in one of the locations in the continental
United States listed on Schedule 1.01(C) or such other locations in the continental United States as the Origination Agent may
approve in writing from time to time; (g) such Inventory is coal; (h) such Inventory is subject to an independent expert measurement
(including a fly over survey or ground survey) conducted not earlier than 12 months prior to the date of determination and otherwise
acceptable to the Origination Agent in its sole discretion; and (h) such Inventory is and at all times shall continue to be acceptable
to the Origination Agent.
“Eligible
Production Plant Components” means the Production Plant Components of a Loan Party which are, and at all times continue
to be, acceptable to the Origination Agent in the exercise of its reasonable business judgment. In general, Production Plant Components
may, in the reasonable business judgment of the Origination Agent, be deemed to be eligible if: (a) such Production Plant Components
is lawfully owned by a Loan Party free and clear of any existing Lien other than in favor of the Collateral Agent for the benefit
of the Agents and the Lenders and otherwise continues to be in full conformity with all representations and warranties made by
a Loan Party to the Agents and the Lenders with respect thereto in the Loan Documents; (b) such Loan Party has the right to grant
Liens on such Production Plant Components; (c) such Production Plant Components is located in one of the locations in the continental
United States listed on Schedule 1.01(C) or such other locations in the continental United States as the Origination Agent may
approve in writing from time to time and if such Production Plant Components is located on real property leased by a Loan Party,
(x) such location is subject to a landlord waiver duly executed by the lessor with respect to such location in form and substance
satisfactory to the Origination Agent and (y) is segregated or otherwise separately identifiable from goods of others, if any,
located on such real property; (d) such Production Plant Components (i) is being used in the operation of the business of such
Loan Party, (ii) is not substantially worn, damaged, defective or obsolete, and (iii) does not constitute furnishings, fixtures
or parts or otherwise is affixed to real property; (e) such Production Plant Components is subject to a valid and perfected first
priority Lien of the Collateral Agent; (f) such Production Plant Components is covered by the property insurance required by the
Agreement which insurance has been duly endorsed to the Collateral Agent; (g) such Production Plant Components is not subject
to a lease with any Person; (h) such Production Plant Components is subject to a Qualified Appraisal dated not earlier than 12
months prior to the date of determination and otherwise acceptable to the Origination Agent in its sole discretion; and (i) such
Production Plant Components is and at all times shall continue to be acceptable to the Origination Agent. Notwithstanding anything
to the contrary contained herein, the foregoing criteria may be revised from time to time by the Origination Agent in the Origination
Agent’s discretion to address the results of any audit or appraisal performed by the Origination Agent from time to time
after the Effective Date.
“Eligible
Real Property” means Real Property of a Loan Party which is, and at all times continue to be, acceptable to the Origination
Agent in the exercise of its reasonable business judgment. In general, Real Property may, in the reasonable business judgment
of the Origination Agent, be deemed to be eligible if: (a) such real property is included on Schedule 1.01(B) or otherwise identified
in writing by the Origination Agent (in its sole discretion) as eligible to be included as an “Eligible Real Property”,
(b) such real property is subject to a first priority Lien (subject to no other Liens other than Permitted Liens) in favor of
the Collateral Agent, for the benefit of the Agents and the Lenders, pursuant to a duly executed and properly recorded Mortgage,
(c) no environmental condition or other event has occurred and is continuing with respect to such real property that could reasonably
be expected to necessitate current or future Remedial Action with respect thereto unless otherwise approved by the Origination
Agent in its reasonable business judgment, (d) (A) a flood hazard determination form has been provided to the Origination Agent,
confirming whether or not the parcel is in a flood hazard area and whether or not floor insurance must be obtained, and, (B) if
improvements located on the Real Property are located in a flood hazard area, a policy of flood insurance, (e) the Origination
Agent has received a Qualified Appraisal of such Real Property dated not earlier than 12 months prior to the date of determination
and otherwise acceptable to the Origination Agent in its sole discretion, and (f) such Real Property is and at all times shall
continue to be acceptable to the Origination Agent.
“Eligible
Securities” means a Security of a Loan Party which is, and at all times continue to be, acceptable to the Origination
Agent in the exercise of its reasonable business judgment. In general, a Security may, in the reasonable business judgment of
the Origination Agent, be deemed to be eligible if: (a) a Loan Party has granted a valid and continuing perfected (in form satisfactory
to the Origination Agent) first priority Lien on such Security in favor of the Collateral Agent, and such Security is subject
to no other Lien or adverse claim (as defined in Section 8-102 of the UCC) and no other arrangements or other obligations of a
Loan Party to transfer or redeliver such Securities; (b) such Security is not an Ineligible Security; and (c) such Security is
approved by the Origination Agent, is set forth on Schedule 1.01(G) and at all times shall continue to be acceptable to the Origination
Agent.
“Employee
Plan” means an employee benefit plan (other than a Multiemployer Plan) covered by Title IV of ERISA and maintained (or
that was maintained at any time during the 6 calendar years preceding the date of any borrowing hereunder) for employees of any
Loan Party or any of its ERISA Affiliates.
“Environmental
Claim” means any complaint, summons, citation, notice, directive, order, claim, litigation, investigation, judicial
or administrative proceeding, judgment, letter or other communication from any Person or Governmental Authority involving any
alleged or actual (a) violation of or liability under any Environmental Law; or (b) manufacture, use, handling, generation, transportation,
storage, treatment, Release, threatened Release or disposal or exposure to any Hazardous Materials.
“Environmental
Law” means any Requirement of Law relating to or concerning (i) the protection of the environment, natural resources,
human health or safety, or (ii) the manufacture, use, handling, generation, transportation, storage, treatment, Release, threatened
Release or disposal of or exposure to any Hazardous Material.
“Environmental
Liability” means all liabilities (contingent or otherwise, known or unknown), monetary obligations, losses (including
monies paid in settlement), damages, natural resource damages, costs and expenses (including all reasonable fees, costs, client
charges and expenses of counsel, experts and consultants), fines, penalties, sanctions and interest arising directly or indirectly
as a result of or based upon (a) any Environmental Claim; (b) any actual, alleged or threatened non-compliance with Environmental
Law or Environmental Permit; (c) any actual, alleged or threatened Release of or exposure to Hazardous Materials; (d) any Remedial
Action; (f) any environmental condition; or (g) any contract, agreement, or other arrangement pursuant to which liability is assumed
or imposed with respect to any of the foregoing.
“Environmental
Lien” means any Lien in favor of any Governmental Authority for Environmental Liability.
“Environmental
Permit” means any permit, license, authorization, approval, registration or entitlement required by or issued pursuant
to any Environmental Law or by any Governmental Authority pursuant to Environmental Law.
“Equity
Interests” means (a) all shares of capital stock (whether denominated as common stock or preferred stock), equity interests,
beneficial, partnership or membership interests, joint venture interests, participations or other ownership or profit interests
in or equivalents (regardless of how designated) of or in a Person (other than an individual), whether voting or non-voting and
(b) all securities convertible into or exchangeable for any of the foregoing and all warrants, options or other rights to purchase,
subscribe for or otherwise acquire any of the foregoing, whether or not presently convertible, exchangeable or exercisable.
“Equity
Issuance” means either (a) the sale or issuance by any Loan Party or any of its Subsidiaries of any shares of its Equity
Interests or (b) the receipt by the Parent of any cash capital contributions.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute of similar import, and regulations
thereunder, in each case, as in effect from time to time. References to sections of ERISA shall be construed also to refer to
any successor sections.
“ERISA
Affiliate” means, with respect to any Person, any trade or business (whether or not incorporated) which is a member
of a group of which such Person is a member and which would be deemed to be a “controlled group” within the meaning
of Sections 414(b), (c), (m) and (o) of the Internal Revenue Code.
“Event
of Default” has the meaning specified therefor in Section 9.01.
“Excess
Cash Flow” means, with respect to any Person for any period, (a) Consolidated EBITDA of such Person and its Subsidiaries
for such period, less (b) the sum of, without duplication, (i) all cash principal payments (excluding any principal payments
made pursuant to Section 2.05(c)) on the Loans made during such period, and all cash principal payments on Indebtedness (other
than Indebtedness incurred under this Agreement) of such Person or any of its Subsidiaries during such period to the extent such
other Indebtedness is permitted to be incurred, and such payments are permitted to be made, under this Agreement (but, in the
case of revolving loans, only to the extent that the revolving credit commitment in respect thereof is permanently reduced by
the amount of such payments), (ii) all Consolidated Net Interest Expense to the extent paid or payable in cash during such period,
(iii) the cash portion of Capital Expenditures-Maintenance made by such Person and its Subsidiaries during such period to the
extent permitted to be made under this Agreement (excluding Capital Expenditures-Maintenance to the extent financed through the
incurrence of Indebtedness or through an Equity Issuance), (iv) all scheduled loan servicing fees and other similar fees in respect
of Indebtedness of such Person or any of its Subsidiaries paid in cash during such period, to the extent such Indebtedness is
permitted to be incurred, and such payments are permitted to be made, under this Agreement, (v) income taxes paid in cash by such
Person and its Subsidiaries for such period and (vi) the excess, if any, of Working Capital at the end of such period over Working
Capital at the beginning of such period (or minus the excess, if any, of Working Capital at the beginning of such period over
Working Capital at the end of such period).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Excluded
Account” means (a) any deposit account specifically and exclusively used for payroll, payroll taxes and other employee
wage and benefit payments to or for the benefit of any Loan Party’s employees and (b) any Petty Cash Accounts.
“Excluded
Equity Issuance” means (a) in the event that the Parent or any of its Subsidiaries forms any Subsidiary in accordance
with this Agreement, the issuance by such Subsidiary of Equity Interests to the Parent or such Subsidiary, as applicable, (b)
the issuance of Equity Interests by the Parent to any Person that is an equity holder of the Parent prior to such issuance (an
“Equity Holder”) so long as such Equity Holder did not acquire any Equity Interests of the Parent so as to
become an Equity Holder concurrently with, or in contemplation of, the issuance of such Equity Interests to such Equity Holder,
(c) the issuance of Equity Interests of the Parent to directors, officers and employees of the Parent and its Subsidiaries pursuant
to employee stock option plans (or other employee incentive plans or other compensation arrangements) approved by the Board of
Directors of the Parent, and (d) the issuance of Equity Interests by a Subsidiary of the Parent to its parent or member in connection
with the contribution by such parent or member to such Subsidiary of the proceeds of an issuance described in clauses (a) –
(c) above.
“Excluded
Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted
from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch
profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal
office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political
subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed
on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant
to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment or (ii) such Lender changes
its lending office, except in each case to the extent that, pursuant to Section 2.09, amounts with respect to such Taxes were
payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately
before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.09(d)
and (d) any U.S. federal withholding Taxes imposed under FATCA.
“Executive
Order No. 13224” means the Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, as the same
has been, or shall hereafter be, renewed, extended, amended or replaced.
“Existing
Agent” means PNC Bank, National Association, as administrative agent under the Existing Credit Facility for the Existing
Lenders.
“Existing
Credit Facility” means the Amended and Restated Credit Agreement, dated as of July 29, 2011, by and among the Loan Parties,
the Existing Lenders and the Existing Agent, as amended, amended and restated, supplemented or otherwise modified prior to the
Effective Date.
“Existing
Lenders” means the lenders party to the Existing Credit Facility.
“Extraordinary
Receipts” means any cash received by the Parent or any of its Subsidiaries not in the ordinary course of business (and
not consisting of proceeds described in Section 2.05(c)(ii) or (iii) hereof), including, without limitation, (a) foreign, United
States, state or local tax refunds, (b) pension plan reversions, (c) proceeds of insurance (other than to the extent such insurance
proceeds are (i) immediately payable to a Person that is not the Parent or any of its Subsidiaries in accordance with applicable
Requirements of Law or with Contractual Obligations entered into in the ordinary course of business or (ii) received by the Parent
or any of its Subsidiaries as reimbursement for any out-of-pocket costs incurred or made by such Person prior to the receipt thereof
directly related to the event resulting from the payment of such proceeds), (d) judgments, proceeds of settlements or other consideration
of any kind in connection with any cause of action, (e) condemnation awards (and payments in lieu thereof), (f) indemnity payments
(other than to the extent such indemnity payments are (i) immediately payable to a Person that is not an Affiliate of the Parent
or any of its Subsidiaries or (ii) received by the Parent or any of its Subsidiaries as reimbursement for any costs previously
incurred or any payment previously made by such Person), (g) any purchase price adjustment received in connection with any purchase
agreement and (h) coal land right sale proceeds and/or associated royalties in excess of $250,000 in the aggregate in any Fiscal
Year.
“Facility”
means the real properties and leases identified on Schedule 1.01(B) and any New Facility hereafter acquired by the Parent or any
of its Subsidiaries, including, without limitation, the land on which each such facility is located, all buildings and other improvements
thereon, and all fixtures located thereat or used in connection therewith.
“FASB
ASC” means the Accounting Standards Codification of the Financial Accounting Standards Board.
“FATCA”
means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version
that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official
interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code and any fiscal,
tax or regulatory legislation, rules or official practices adopted pursuant to any intergovernmental agreement entered into in
connection with the implementation of Sections 1471 through 1474 of the Internal Revenue Code and the Treasury Regulations thereunder.
“Federal
Funds Rate” means, for any period, a fluctuating interest rate per annum equal to, for each day during such period,
the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published
on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day
which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent
from national banks of recognized standing selected by it.
“Fee
Letter” means the fee letter, dated as of the date hereof, among the Borrowers and the Agents, as amended, amended and
restated, supplemented or otherwise modified from time to time.
“Final
Maturity Date” means December 27, 2020.
“Financial
Statements” means (a) the audited consolidated balance sheet of the Parent and its Subsidiaries for the Fiscal Year
ended December 31, 2016, and the related consolidated statement of operations, shareholders’ equity and cash flows for the
Fiscal Year then ended, and (b) the unaudited consolidated balance sheet of the Parent and its Subsidiaries for the ten (10) months
ended October 31, 2016, and the related consolidated statement of operations, shareholder’s equity and cash flows for the
ten (10) months then ended.
“Fiscal
Year” means the fiscal year of the Parent and its Subsidiaries ending on December 31st of each year.
“Fixed
Charge Coverage Ratio” means, with respect to any Person for any period, the ratio of (a) Consolidated EBITDA of such
Person and its Subsidiaries for such period minus Capital Expenditures-Maintenance made by such Person and its Subsidiaries during
such period, to (b) the sum of (i) all principal of Indebtedness of such Person and its Subsidiaries scheduled to be paid or prepaid
during such period, plus (ii) Consolidated Net Interest Expense of such Person and its Subsidiaries for such period, plus
(iii) income taxes paid or payable by such Person and its Subsidiaries during such period plus (iv) cash dividends
or distributions paid, or the purchase, redemption or other acquisition or retirement for value (including in connection with
any merger or consolidation), by such Person or any of its Subsidiaries, in respect of the Equity Interests of such Person or
any of its Subsidiaries (other than dividends or distributions paid by a Loan Party to any other Loan Party) during such period,
plus (v) all management, consulting, monitoring, and advisory fees paid by such Person or any of its Subsidiaries to any of its
Affiliates during such period.
“Foreign
Lender” has the meaning specified therefor in Section 2.09(d).
“Foreign
Official” has the meaning specified therefor in Section 6.01(z).
“Foreign
Subsidiary” means any Subsidiary of the Parent that is not a Domestic Subsidiary.
“Free
Cash Flow” means, as of any date of determination, for the most recently ended trailing twelve months, the result of
(i) Consolidated EBITDA of the Parent and its Subsidiaries for such period, minus (ii) Capital Expenditures of the Parent and
its Subsidiaries for such period, minus (iii) Debt Service for such period.
“Funding
Losses” has the meaning specified therefor in Section 2.08.
“GAAP”
means generally accepted accounting principles in effect from time to time in the United States, applied on a consistent basis,
provided that for the purpose of Section 7.03 hereof and the definitions used therein, “GAAP” shall mean generally
accepted accounting principles in effect on the date hereof and consistent with those used in the preparation of the Financial
Statements, provided, further, that if there occurs after the date of this Agreement any change in GAAP that affects in any respect
the calculation of any covenant contained in Section 7.03 hereof, the Origination Agent and the Administrative Borrower shall
negotiate in good faith amendments to the provisions of this Agreement that relate to the calculation of such covenant with the
intent of having the respective positions of the Lenders and the Borrowers after such change in GAAP conform as nearly as possible
to their respective positions as of the date of this Agreement and, until any such amendments have been agreed upon, the covenants
in Section 7.03 hereof shall be calculated as if no such change in GAAP has occurred.
“General
Partner” means Rhino GP LLC, a Delaware limited liability company that is the general partner of the Parent.
“Governing
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 the operating agreement; (c) with respect to any partnership,
joint venture, trust or other form of business entity, the partnership, joint venture, declaration or other applicable agreement
or documentation evidencing or otherwise relating to its formation or organization, governance and capitalization; and (d) with
respect to any of the entities described above, any other 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.
“Governmental
Authority” means any nation or government, any Federal, state, city, town, municipality, county, local or other political
subdivision thereof or thereto and any department, commission, board, bureau, instrumentality, agency 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).
“Guaranteed
Obligations” has the meaning specified therefor in Section 11.01.
“Guarantor”
means (a) the Parent and each Subsidiary of the Parent listed as a “Guarantor” on the signature pages hereto, and
(b) each other Person which guarantees, pursuant to Section 7.01(b) or otherwise, all or any part of the Obligations.
“Guaranty”
means (a) the guaranty of each Guarantor party hereto contained in Article XI hereof and (b) each other guaranty, in form and
substance satisfactory to the Origination Agent, made by any other Guarantor in favor of the Collateral Agent for the benefit
of the Agents and the Lenders guaranteeing all or part of the Obligations.
“Hazardous
Material” means any element, compound or chemical that is defined, listed or otherwise classified as a contaminant,
pollutant, toxic or hazardous substance, hazardous waste, special waste, or solid waste or words of similar import under any Environmental
Law or that is otherwise regulated under or for which liability or standards of care are imposed pursuant to any Environmental
Law, including, without limitation, petroleum, polychlorinated biphenyls; asbestos-containing materials, urea formaldehyde-containing
materials radioactive materials and toxic mold; provided, however, that “Hazardous Material” shall not include coal,
coal by-products or coal refuse.
“Hedging
Agreement” means any interest rate, foreign currency, commodity or equity swap, collar, cap, floor or forward rate agreement,
or other agreement or arrangement designed to protect against fluctuations in interest rates or currency, commodity or equity
values (including, without limitation, any option with respect to any of the foregoing and any combination of the foregoing agreements
or arrangements), and any confirmation executed in connection with any such agreement or arrangement.
“Highest
Lawful Rate” means, with respect to any Agent or any Lender, the maximum non-usurious interest rate, if any, that at
any time or from time to time may be contracted for, taken, reserved, charged or received on the Obligations under laws applicable
to such Agent or such Lender which are currently in effect or, to the extent allowed by law, under such applicable laws which
may hereafter be in effect and which allow a higher maximum non-usurious interest rate than applicable laws now allow.
“Holdout
Lender” has the meaning specified therefor in Section 12.02(b).
“Hydrocarbon
Auxiliary Assets and Activities” means (i) equipment or infrastructure related to Hydrocarbons or Hydrocarbon Interests,
(ii) assets and activities germane to mid-stream businesses involving Hydrocarbons or Hydrocarbon Interests, (iii) oil and gas
services businesses and (iv) the exploration, mining and development of materials used in the extraction of Hydrocarbons.
“Hydrocarbon
Interests” means all rights, titles and interests in and to oil and gas leases, oil, gas and mineral leases, other Hydrocarbon
leases, mineral interests, mineral servitudes, overriding royalty interests, royalty interests, net profits interests, production
payment interests, and other similar interests, but excluding coal.
“Hydrocarbons”
means, collectively, oil, gas, coalbed methane, oil shale, oil sands, casinghead gas, drip gasoline, natural gasoline, condensate,
distillate and all other liquid or gaseous hydrocarbons and related minerals and all products therefrom, in each case whether
in a natural or a processed state, but excluding coal.
“Indebtedness”
means, with respect to any Person, without duplication, (a) all indebtedness of such Person for borrowed money; (b) all obligations
of such Person for the deferred purchase price of property or services (other than trade payables or other accounts payable incurred
in the ordinary course of such Person’s business and not outstanding for more than 90 days after the date such payable was
created and any earn-out, purchase price adjustment or similar obligation until such obligation appears in the liabilities section
of the balance sheet of such Person); (c) all obligations of such Person evidenced by bonds, debentures, notes or other similar
instruments or upon which interest payments are customarily made; (d) all reimbursement, payment or other obligations and liabilities
of such Person created or arising under any conditional sales or other title retention agreement with respect to property used
and/or acquired by such Person, even though the rights and remedies of the lessor, seller and/or lender thereunder may be limited
to repossession or sale of such property; (e) all Capitalized Lease Obligations of such Person; (f) all obligations and liabilities,
contingent or otherwise, of such Person, in respect of letters of credit, acceptances and similar facilities; (g) all obligations
and liabilities, calculated on a basis satisfactory to the Origination Agent and in accordance with accepted practice, of such
Person under Hedging Agreements; (h) all monetary obligations under any receivables factoring, receivable sales or similar transactions
and all monetary obligations under any synthetic lease, tax ownership/operating lease, off-balance sheet financing or similar
financing; (i) all Contingent Obligations; (j) all Disqualified Equity Interests; and (k) all obligations referred to in clauses
(a) through (j) of this definition of another Person secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) a Lien upon property owned by such Person, even though such Person has not assumed
or become liable for the payment of such Indebtedness. The Indebtedness of any Person shall include the Indebtedness of any partnership
of or joint venture in which such Person is a general partner or a joint venturer.
“Indemnified
Matters” has the meaning specified therefor in Section 12.15.
“Indemnified
Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of
any obligation any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Indemnitees”
has the meaning specified therefor in Section 12.15.
“Ineligible
Securities” means, at a particular time, any Securities that (i) are assets in diversified investment funds, (ii) are
not traded over the counter on pink sheets (other than as a result of being listed on NASDAQ or NYSE), (iii) have a market value
of $10 or less per share, (iv) are registered in survivorship form when one or more of the registered owners is deceased, (v)
are registered under the Uniform Gifts to Minor Acts, (vi) are registered in “street” form, (vii) are Rule 144 Restricted
or Control securities, (viii) are Securities of a foreign corporation (excluding American Depository Receipts), (ix) are Small
Business Investment Company stock, (x) are safekeeping receipts from banks in lieu of actual securities, (xi) are held in retirement
accounts, or (xii) are subject to any restrictions, including, without limitation, with respect to use, disposition or transfer.
“Insolvency
Proceeding” means any proceeding commenced by or against any Person under any provision of any Debtor Relief Law.
“Intellectual
Property” has the meaning specified therefor in the Security Agreement.
“Intercompany
Subordination Agreement” means an Intercompany Subordination Agreement made by the Parent and its Subsidiaries in favor
of the Collateral Agent for the benefit of the Agents and the Lenders, in form and substance reasonably satisfactory to the Origination
Agent.
“Interest
Period” means, with respect to each LIBOR Rate Loan, a period commencing on the date of the making of such LIBOR Rate
Loan (or the continuation of a LIBOR Rate Loan or the conversion of a Reference Rate Loan to a LIBOR Rate Loan) and ending 1,
2, or 3 months thereafter; provided, however, that (a) if any Interest Period would end on a day that is not a Business
Day, such Interest Period shall be extended (subject to clauses (c)-(e) below) to the next succeeding Business Day, (b) interest
shall accrue at the applicable rate based upon the LIBOR Rate from and including the first day of each Interest Period to, but
excluding, the day on which any Interest Period expires, (c) any Interest Period that would 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, (d) with respect to an 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), the Interest Period shall end on the last Business Day of the calendar month that is 1, 2 or 3 months
after the date on which the Interest Period began, as applicable, and (e) the Borrowers may not elect an Interest Period which
will end after the Final Maturity Date.
“Internal
Revenue Code” means the Internal Revenue Code of 1986, as amended.
“Inventory”
means, with respect to any Person, all goods and merchandise of such Person leased or held for sale or lease by such Person, including,
without limitation, all raw materials, as-extracted minerals, work-in-process and finished goods, and all packaging, supplies
and materials of every nature used or usable in connection with the shipping, storing, advertising or sale of such goods and merchandise,
whether now owned or hereafter acquired, and all such other property the sale or other disposition of which would give rise to
an Account or cash.
“Investment”
means, with respect to any Person, (a) any investment by such Person in any other Person (including Affiliates) in the form of
loans, guarantees, advances or other extensions of credit (excluding Accounts arising in the ordinary course of business), capital
contributions or acquisitions of Indebtedness (including, any bonds, notes, debentures or other debt securities), Equity Interests,
or all or substantially all of the assets of such other Person (or of any division or business line of such other Person), (b)
the purchase or ownership of any futures contract or liability for the purchase or sale of currency or other commodities at a
future date in the nature of a futures contract, or (c) any investment in any other items that are or would be classified as investments
on a balance sheet of such Person prepared in accordance with GAAP.
“Joinder
Agreement” means a Joinder Agreement, substantially in the form of Exhibit A, duly executed by a Subsidiary of a Loan
Party made a party hereto pursuant to Section 7.01(b).
“Lease”
means any lease, sublease or license of, or other agreement granting a possessory interest in, real property to which any Loan
Party or any of its Subsidiaries is a party as lessor, lessee, sublessor, sublessee, licensor or licensee.
“Lender”
has the meaning specified therefor in the preamble hereto.
“LIBOR”
means, with respect to any LIBOR Rate Loan for any Interest Period, the London interbank offered rate administered by the ICE
Benchmark Administration (or any other Person that takes over the administration of such rate) and obtained through a nationally
recognized service such as the Dow Jones Market Service (Telerate), Reuters or Bloomberg (or on any successor or substitute page
on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate
from time to time as selected by the Administrative Agent in its reasonable discretion; in each case, the “Screen Rate”),
or a comparable or successor rate that has been approved by the Administrative Agent, at approximately 11:00 a.m., London time,
two Business Days prior to the commencement of such Interest Period; provided, that, if the Screen Rate shall not
be available at such time for such Interest Period (an “Impacted Interest Period”) with respect to Dollars,
then the LIBOR Rate shall be the Interpolated Rate at such time; provided that, to the extent that an interest rate is
not ascertainable pursuant to the foregoing provisions of this definition, “LIBOR” shall be the interest rate per
annum determined by the Administrative Agent, in accordance with its customary practices (including by reference to any applicable
published market data), to be the average of the rates per annum at which deposits in Dollars are offered for such Interest Period
to major banks in the London interbank market in London, England by major banks at approximately 11:00 a.m. (London time) on the
date that is two Business Days prior to the beginning of such Interest Period. “Interpolated Rate” means, at
any time, the rate per annum determined by the Administrative Agent (which determination shall be conclusive and binding absent
manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the Screen Rate for the
longest period (for which that Screen Rate is available in Dollars) that is shorter than the Impacted Interest Period and (b)
the Screen Rate for the shortest period (for which that Screen Rate is available for Dollars) that exceeds the Impacted Interest
Period, in each case, at such time. Notwithstanding anything herein to the contrary, if “LIBOR” shall be less than
zero, such rate shall be deemed to be zero for purposes of this Agreement.
“LIBOR
Deadline” has the meaning specified therefor in Section 2.07(a).
“LIBOR
Notice” means a written notice substantially in the form of Exhibit D.
“LIBOR
Option” has the meaning specified therefor in Section 2.07(a).
“LIBOR
Rate” means, for each Interest Period for each LIBOR Rate Loan, the greater of (a) the rate per annum determined by
the Administrative Agent (rounded upwards if necessary, to the next 1/100%) by dividing (i) LIBOR for such Interest Period by
(ii) 100% minus the Reserve Percentage and (b) 1.00%. The LIBOR Rate shall be adjusted on and as of the effective day of any change
in the Reserve Percentage.
“LIBOR
Rate Loan” means each portion of a Loan that bears interest at a rate determined by reference to the LIBOR Rate.
“Lien”
means any mortgage, deed of trust, deed to secure debt, pledge, lien (statutory or otherwise), security interest, charge or other
encumbrance or security or preferential arrangement of any nature, including, without limitation, any conditional sale or title
retention arrangement, any Capitalized Lease and any assignment, deposit arrangement or financing lease intended as, or having
the effect of, security.
“Loan”
means any Term Loan made by an Agent or a Lender to the Borrowers pursuant to Article II hereof.
“Loan
Account” means an account maintained hereunder by the Administrative Agent on its books of account at the Payment Office,
and with respect to the Borrowers, in which the Borrowers will be charged with all Loans made to, and all other Obligations incurred
by, the Borrowers.
“Loan
Document” means this Agreement, any Control Agreement, the Disbursement Letter, the Fee Letter, any Guaranty, the Intercompany
Subordination Agreement, any Joinder Agreement, any Mortgage, any Security Agreement, any UCC Filing Authorization Letter, any
landlord waiver, any collateral access agreement, any Perfection Certificate and any other agreement, instrument, certificate,
report and other document executed and delivered pursuant hereto or thereto or otherwise evidencing or securing any Loan or any
other Obligation.
“Loan
Party” means any Borrower and any Guarantor.
“Make-Whole
Amount” means, as of any date of determination, an amount equal to the aggregate amount of interest (including, without
limitation, interest payable in cash, in kind or deferred) which would have otherwise been payable on the aggregate principal
amount of the Term Loan paid on such date (or in the case of an Applicable Premium Trigger Event specified in clauses (b), (c),
(d) or (e) of the definition thereof, the principal amount of the Term Loan outstanding on such date and the aggregate amount
of the Unused Line Fee (assuming for purposes of calculating the Unused Line Fee that the Total Delayed Draw Term Loan Commitment
is equal to the amount of the Total Delayed Draw Term Loan Commitment immediately prior to the occurrence of the Applicable Premium
Trigger Event) which would have otherwise accrued) from the date of the occurrence of the Applicable Premium Trigger Event until
the twelfth month anniversary of the Effective Date.
“Market
Value” means the market value of any Security, determined as follows: Securities which are listed on a national securities
exchange shall be valued at their last sales prices on the date of determination on the largest national securities exchange on
which such Securities shall have traded on such date, or, if trading in such Securities on such exchange was reported on the consolidated
tape, the last sales price on the consolidated tape (or, in the event that the date of determination is not a date upon which
a national securities exchange on which such Securities are listed was open for trading, on the last prior date on which such
a national securities exchange was so open). In all other cases, Securities shall be assigned such value as the Origination Agent
shall reasonably determine.
“Material
Adverse Effect” means a material adverse effect on any of (a) the operations, assets, liabilities, financial condition
or prospects of the Loan Parties taken as a whole, (b) the ability of the Loan Parties taken as a whole to perform any of their
obligations under any Loan Document, (c) the legality, validity or enforceability of this Agreement or any other Loan Document,
(d) the rights and remedies of any Agent or any Lender under any Loan Document, or (e) the validity, perfection or priority of
a Lien in favor of the Collateral Agent for the benefit of the Agents and the Lenders on Collateral having a fair market value
in excess of $1,000,000.
“Material
Contract” means, with respect to any Person, (a) each contract or agreement to which such Person or any of its Subsidiaries
is a party involving aggregate consideration payable to or by such Person or such Subsidiary of $1,000,000 or more in any Fiscal
Year (other than purchase orders in the ordinary course of the business of such Person or such Subsidiary and other than contracts
that by their terms may be terminated by such Person or Subsidiary in the ordinary course of its business upon less than 60 days’
notice without penalty or premium) and (b) all other contracts or agreements as to which the breach, nonperformance, cancellation
or failure to renew by any party thereto could reasonably be expected to have a Material Adverse Effect.
“Material
Lease” has the meaning specified therefor in Section 6.01(o)(ii).
“Moody’s”
means Moody’s Investors Service, Inc. and any successor thereto.
“Mortgage”
means a mortgage (including, without limitation, a leasehold mortgage), deed of trust or deed to secure debt, in form and substance
satisfactory to the Origination Agent, made by a Loan Party in favor of the Collateral Agent for the benefit of the Agents and
the Lenders, securing the Obligations and delivered to the Collateral Agent.
“Multiemployer
Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA to which any Loan Party or
any of its ERISA Affiliates has contributed, or has been obligated to contribute, to at any time during the preceding 6 years.
“Net
Amount of Eligible Accounts” means the aggregate unpaid invoice amount (including any coal quality premiums due and
payable in respect thereof) of Eligible Accounts less, without duplication, sales, excise or similar taxes, returns, discounts,
chargebacks, claims, advance payments, credits and allowances of any nature at any time issued, owing, granted, outstanding, available
or claimed with respect to such Eligible Accounts.
“Net
Cash Proceeds” means, with respect to, any issuance or incurrence of any Indebtedness, any Equity Issuance, any Disposition
or the receipt of any Extraordinary Receipts by any Person or any of its Subsidiaries, the aggregate amount of cash received (directly
or indirectly) from time to time (whether as initial consideration or through the payment or disposition of deferred consideration)
by or on behalf of such Person or such Subsidiary, in connection therewith after deducting therefrom only (a) in the case of any
Disposition or the receipt of any Extraordinary Receipts consisting of insurance proceeds or condemnation awards, the amount of
any Indebtedness secured by any Permitted Lien on any asset (other than Indebtedness assumed by the purchaser of such asset) which
is required to be, and is, repaid in connection therewith (other than Indebtedness under this Agreement), (b) reasonable expenses
related thereto incurred by such Person or such Subsidiary in connection therewith, (c) transfer taxes paid to any taxing authorities
by such Person or such Subsidiary in connection therewith, and (d) net income taxes to be paid in connection therewith (after
taking into account any tax credits or deductions and any tax sharing arrangements), in each case, to the extent, but only to
the extent, that the amounts so deducted are (i) actually paid to a Person that, except in the case of reasonable out-of-pocket
expenses, is not an Affiliate of such Person or any of its Subsidiaries and (ii) properly attributable to such transaction or
to the asset that is the subject thereof.
“Net
Orderly Liquidation Value” means, with
respect to the Loan Parties’ Above Ground Equipment, Below Ground Equipment or Production Plant Components, as applicable,
the amount that is estimated to be recoverable in an orderly liquidation of such Above Ground Equipment, Below Ground Equipment
or Production Plant Components, as applicable, net of all associated costs and expenses of such liquidation, with such amount
to be as determined from time to time by reference to a Qualified Appraisal.
“New
Facility” has the meaning specified therefor in Section 7.01(m).
“Notice
of Borrowing” has the meaning specified therefor in Section 2.02(a).
“Obligations”
means all present and future indebtedness, obligations, and liabilities (including, without limitation, the Term Loan PIK Amount)
of each Loan Party to the Agents and the Lenders arising under or in connection with this Agreement or any other Loan Document,
whether or not the right of payment in respect of such claim is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured, unsecured, and whether or not such claim is discharged, stayed or otherwise
affected by any proceeding referred to in Section 9.01. Without limiting the generality of the foregoing, the Obligations of each
Loan Party under the Loan Documents include (a) the obligation (irrespective of whether a claim therefor is allowed in an Insolvency
Proceeding) to pay principal, interest (including, without limitation, the Term Loan PIK Amount), charges, expenses, fees, premiums
(including the Applicable Premium), reasonable attorneys’ fees and disbursements, indemnities and other amounts payable
by such Person under the Loan Documents, and (b) the obligation of such Person to reimburse any amount in respect of any of the
foregoing that any Agent or any Lender (in its sole discretion) may elect to pay or advance on behalf of such Person.
“OFAC
Sanctions Programs” means (a) the Requirements of Law and Executive Orders administered by OFAC, including, without
limitation, Executive Order No. 13224, and (b) the list of Specially Designated Nationals and Blocked Persons administered by
OFAC, in each case, as renewed, extended, amended, or replaced.
“Origination
Agent” has the meaning specified therefor in the preamble hereto.
“Origination
Agent Advances” has the meaning specified therefor in Section 10.08(a).
“Other
Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection
between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed,
delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest
under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan
or Loan Document).
“Other
Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that
arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt
or perfection of a security interest under, or otherwise with respect to, any Loan Document.
“Parent”
has the meaning specified therefor in the preamble hereto.
“Participant
Register” has the meaning specified therefor in Section 12.07(i).
“Partnership
Agreement shall mean the Fourth Amended and Restated Agreement of Limited Partnership of the Parent, as in effect on December
30, 2016, as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with this Agreement.
“Payment
Office” means the Administrative Agent’s office located at 225 W. Washington St., 9th Floor, Chicago,
Illinois 60606, or at such other office or offices of the Administrative Agent as may be designated in writing from time to time
by the Administrative Agent to the Collateral Agent and the Administrative Borrower.
“PBGC”
means the Pension Benefit Guaranty Corporation or any successor thereto.
“Perfection
Certificate” means a certificate in form and substance satisfactory to the Origination Agent providing information with
respect to the property of each Loan Party.
“Permitted
Acquisition” means any Acquisition by a Loan Party or any wholly-owned Subsidiary of a Loan Party that is approved in
writing by the Origination Agent in its sole discretion.
“Permitted
Disposition” means:
(a)
sale of Inventory in the ordinary course of business;
(b)
licensing, on a non-exclusive basis, Intellectual Property rights in the ordinary course of business;
(c)
(i) the lapse of Registered Intellectual Property of the Parent and its Subsidiaries to the extent not economically desirable
in the conduct of their business or (ii) the abandonment of Intellectual Property rights in the ordinary course of business so
long as (in each case under clauses (i) and (ii)), (A) with respect to copyrights, such copyrights are not material revenue generating
copyrights, and (B) such lapse is not materially adverse to the interests of the Secured Parties;
| (d) | any
involuntary loss, damage or destruction of property; |
(e)
so long as no Event of Default has occurred and is continuing or would result therefrom, transfers of assets (i) from the Parent
or any of its Subsidiaries (other than the Borrowers) to a Loan Party (other than the Parent), and (ii) from any Subsidiary of
the Parent that is not a Loan Party to any other Subsidiary of the Parent;
(f)
Disposition of obsolete or worn-out equipment in the ordinary course of business;
(g)
Disposition of used, mined-out or surplus real property in the ordinary course of business; and
(h)
Disposition of property or assets not otherwise permitted in clauses (a) through (g) above for cash in an aggregate amount not
less than the fair market value of such property or assets;
provided
that the Net Cash Proceeds of such Dispositions (including the proposed Disposition) (1) in the case of clauses (f), (g) and
(h) above, do not exceed $2,000,000 in the aggregate in any Fiscal Year and (2) in all cases, are paid to the Administrative Agent
for the benefit of the Agents and the Lenders pursuant to the terms of Section 2.05(c)(ii) or applied as provided in Section 2.05(c)(v).
“Permitted
Holder” means Royal Energy Resources, Inc. or any Controlled Investment Affiliate thereof.
“Permitted
Indebtedness” means:
(a)
any Indebtedness owing to any Agent or any Lender under this Agreement and the other Loan Documents;
(b)
any other Indebtedness listed on Schedule 7.02(b), and any Permitted Refinancing Indebtedness in respect of such Indebtedness;
(c)
Permitted Purchase Money Indebtedness and any Permitted Refinancing Indebtedness in respect of such Indebtedness;
(d)
Permitted Intercompany Investments;
(e)
Indebtedness incurred in the ordinary course of business under performance, surety, statutory, and appeal bonds, in each case,
(i) with the Loan Parties’ existing bonding company as of the Effective Date, or (ii) as approved by the Origination Agent
in writing;
(f)
Indebtedness owed to any Person providing property, casualty, liability, or other insurance to the Loan Parties, so long as the
amount of such Indebtedness is not in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost
of, such insurance for the period in which such Indebtedness is incurred and such Indebtedness is outstanding only during such
period;
(g)
the incurrence by any Loan Party of Indebtedness under Hedging Agreements that are incurred for the bona fide purpose of hedging
the interest rate, commodity, or foreign currency risks associated with such Loan Party’s operations and not for speculative
purposes, in each case, as approved by the Origination Agent in writing;
(h)
Indebtedness incurred in respect of credit cards, credit card processing services, debit cards, stored value cards, purchase cards
(including so-called “procurement cards” or “P-cards”) or other similar cash management services, in each
case, incurred in the ordinary course of business;
(i)
Indebtedness with respect to letters of credit in an aggregate principal amount at any time outstanding not to exceed $20,000,000;
and
(j)
unsecured Indebtedness in an aggregate amount not exceeding $1,000,000 at any time outstanding.
“Permitted
Intercompany Investments” means Investments made by a Loan Party to or in another Loan Party (other than the Parent).
“Permitted
Investments” means:
(a)
Investments in cash and Cash Equivalents;
(b)
Investments in negotiable instruments deposited or to be deposited for collection in the ordinary course of business;
(c)
advances made in connection with purchases of goods or services in the ordinary course of business;
(d)
Investments received in settlement of amounts due to any Loan Party or any of its Subsidiaries effected in the ordinary course
of business or owing to any Loan Party or any of its Subsidiaries as a result of Insolvency Proceedings involving an Account Debtor
or upon the foreclosure or enforcement of any Lien in favor of a Loan Party or its Subsidiaries;
(e)
Investments existing on the date hereof, as set forth on Schedule 7.02(e) hereto, but not any increase in the amount thereof as
set forth in such Schedule or any other modification of the terms thereof;
(f)
Permitted Intercompany Investments;
(g)
Permitted Acquisitions; and
(h)
so long as no Default or Event of Default has occurred and is continuing or would result therefrom, (i) any other Investments
in an aggregate amount not to exceed $500,000 at any time outstanding, and (ii) any other Investments approved by the Origination
Agent.
“Permitted
Liens” means:
| (a) | Liens
securing the Obligations; |
(b)
Liens for taxes, assessments and governmental charges the payment of which is not required under Section 7.01(c)(ii);
(c)
Liens imposed by law, such as carriers’, warehousemen’s, mechanics’, materialmen’s and other similar Liens
arising in the ordinary course of business and securing obligations (other than Indebtedness for borrowed money) that are not
overdue by more than 30 days or are being contested in good faith and by appropriate proceedings promptly initiated and diligently
conducted, and a reserve or other appropriate provision, if any, as shall be required by GAAP shall have been made therefor;
(d)
Liens described on Schedule 7.02(a), provided that any such Lien shall only secure the Indebtedness that it secures on
the Effective Date and any Permitted Refinancing Indebtedness in respect thereof;
(e)
purchase money Liens on equipment acquired or held by any Loan Party or any of its Subsidiaries in the ordinary course of its
business to secure Permitted Purchase Money Indebtedness so long as such Lien only (i) attaches to such property and (ii) secures
the Indebtedness that was incurred to acquire such property or any Permitted Refinancing Indebtedness in respect thereof;
(f)
deposits and pledges of cash securing (i) obligations incurred in respect of workers’ compensation, unemployment insurance
or other forms of governmental insurance or benefits, (ii) the performance of bids, tenders, leases, contracts (other than for
the payment of money) and statutory obligations or (iii) obligations on surety or appeal bonds, but only to the extent such deposits
or pledges are made or otherwise arise in the ordinary course of business and secure obligations not past due;
(g)
with respect to any Facility, survey exceptions, easements, zoning restrictions and similar encumbrances on real property and
minor irregularities in the title thereto (in each case, whether recorded or not) that do not (i) secure obligations for the payment
of money or (ii) materially impair the value of such property or its use by any Loan Party or any of its Subsidiaries in the normal
conduct of such Person’s business;
(h)
Liens of landlords and mortgagees of landlords (i) arising by statute or under any Lease or related Contractual Obligation entered
into in the ordinary course of business, (ii) on fixtures and movable tangible property located on the real property leased or
subleased from such landlord, or (iii) for amounts not yet due or that are being contested in good faith by appropriate proceedings
diligently conducted and for which adequate reserves or other appropriate provisions are maintained on the books of such Person
in accordance with GAAP;
(i)
the title and interest of a lessor or sublessor in and to personal property leased or subleased (other than through a Capitalized
Lease), in each case extending only to such personal property;
(j)
non-exclusive licenses of Intellectual Property rights in the ordinary course of business;
(k)
judgment liens (other than for the payment of taxes, assessments or other governmental charges) securing judgments and other proceedings
not constituting an Event of Default under Section 9.01(j);
(l)
rights of set-off or bankers’ liens upon deposits of cash in favor of banks or other depository institutions, solely to
the extent incurred in connection with the maintenance of such deposit accounts in the ordinary course of business;
(m)
Liens granted in the ordinary course of business on the unearned portion of insurance premiums securing the financing of insurance
premiums to the extent the financing is permitted under the definition of Permitted Indebtedness;
(n)
Liens on cash collateral solely securing Indebtedness permitted by clause (i) of the definition of Permitted Indebtedness;
(o)
inchoate statutory Liens that arise by operation of law and do not secure any obligations for the payment of money then due and
payable;
(p)
(i) rights and easements of owners of undivided interest in the property where the Loan Parties or their Subsidiaries own less
than 100% of the fee interest, (ii) rights and easements of owners of interest in the surface where the Loan Parties or their
Subsidiaries do not own or lease the surface, (iii) rights and easements of owners and lessees, if any, of coal or other minerals,
including oil and gas, where the Loan Parties or their Subsidiaries do not own such coal or other minerals, and (iv) rights and
easements of owners and lessees of other coal seams and other minerals, including oil and gas, not owned or leased by the Loan
Parties or their Subsidiaries, in each case of clauses (i), (ii), (iii) and (iv), that do not (A) secure obligations for the payment
of money or (B) materially impair the value of such property or its use by any Loan Party or any of its Subsidiaries in the normal
conduct of such Person’s business;
(q)
terms, agreements, conditions, provisions and limitations contained in applicable Coal Leases as in effect on the Effective Date
or otherwise approved in writing by the Origination Agent;
(r)
the interest of a lessee under farm, grazing, hunting, recreational and residential leases in which a Loan Party or any of its
Subsidiaries is the lessor entered into in the ordinary course of business consistent with past practices;
(s)
royalty obligations to sellers or transferors of fee coal or lease properties as in effect on the Effective Date or otherwise
approved in writing by the Origination Agent;
(t)
rights of Persons to subjacent or lateral support and absence of subsidence rights;
(u)
rights of repurchase when mining and reclamation operations of any Loan Party or any of its Subsidiaries are completed at a Facility;
(v)
licenses to mine on behalf of any Loan Party or any of its Subsidiaries granted under contract mining agreements entered into
in the ordinary course of business consistent with past practices or otherwise approved in writing by the Origination Agent; and
(w)
other Liens which do not secure Indebtedness for borrowed money or letters of credit and as to which the aggregate amount of the
obligations secured thereby does not exceed $500,000.
“Permitted
Purchase Money Indebtedness” means, as of any date of determination, Indebtedness (other than the Obligations, but including
Capitalized Lease Obligations) incurred to finance the acquisition of any fixed assets secured by a Lien permitted under clause
(e) of the definition of “Permitted Liens”; provided that (a) such Indebtedness is incurred within 20 days
after such acquisition, (b) such Indebtedness when incurred shall not exceed the purchase price of the asset financed and (c)
the aggregate principal amount of all such Indebtedness shall not exceed $1,000,000 at any time outstanding.
“Permitted
Refinancing Indebtedness” means the extension of maturity, refinancing or modification of the terms of Indebtedness
so long as:
(a)
after giving effect to such extension, refinancing or modification, the amount of such Indebtedness is not greater than the amount
of Indebtedness outstanding immediately prior to such extension, refinancing or modification;
(b)
such extension, refinancing or modification does not result in a shortening of the average weighted maturity (measured as of the
extension, refinancing or modification) of the Indebtedness so extended, refinanced or modified;
(c)
such extension, refinancing or modification is pursuant to terms that are not less favorable to the Loan Parties and the Lenders
than the terms of the Indebtedness (including, without limitation, terms relating to the collateral (if any) and subordination
(if any)) being extended, refinanced or modified; and
(d)
the Indebtedness that is extended, refinanced or modified is not recourse to any Loan Party or any of its Subsidiaries that is
liable on account of the obligations other than those Persons which were obligated with respect to the Indebtedness that was refinanced,
renewed, or extended.
“Permitted
Restricted Payments” means any of the following Restricted Payments made by:
(a)
any Loan Party to the Parent in amounts necessary to pay taxes and other customary expenses as and when due and owing by the Parent
in the ordinary course of its business as a public holding company (including salaries and related reasonable and customary expenses
incurred by employees of the Parent), so long as no Default or Event of Default shall have occurred and be continuing or would
result from the making of such payment,
(b)
any Subsidiary or Affiliate of any Borrower to such Borrower,
(c)
the Parent to pay dividends in the form of common Equity Interests, and
(d)
the Parent may pay cash dividends and distributions to the equityholders of the Parent quarterly in accordance with the Partnership
Agreement so long as (A) no Event of Default has occurred and is continuing or would result from such dividend and/or distribution
and (B) an Authorized Officer of the Parent has delivered a certificate to the Origination Agent certifying that (1) after giving
effect to such dividend and/or distribution, Qualified Cash is at least $5,000,000, and (2) the amount of Free Cash Flow for the
most recently ended trailing twelve months exceeds the amount of such dividend and/or distribution; provided, that, notwithstanding
the foregoing, the Parent may pay a one time cash dividend and/or distribution to the Series A Preferred Unitholders (as defined
in the Partnership Agreement) in accordance with the Partnership Agreement in an amount not to exceed $5,200,000 on or before
January 31, 2018 so long as (A) no Event of Default has occurred and is continuing or would result from such dividend and/or distribution
and (B) an Authorized Officer of the Parent has delivered a certificate to the Origination Agent certifying that after giving
effect to such dividend and/or distribution, Qualified Cash is at least $5,000,000.
“Permitted
Specified Liens” means Permitted Liens described in clauses (a), (b) and (c) of the definition of Permitted Liens, and,
solely in the case of Section 7.01(b)(i), including clauses (g), (h) and (i) of the definition of Permitted Liens.
“Person”
means an individual, corporation, limited liability company, partnership, association, joint-stock company, trust, unincorporated
organization, joint venture or other enterprise or entity or Governmental Authority.
“Petty
Cash Accounts” means Cash Management Accounts with deposits at any time in an aggregate amount not in excess of $50,000
for any one account and $100,000 in the aggregate for all such accounts.
“PIK
Option” has the meaning specified therefor in Section 2.04(a).
“Plan”
means any Employee Plan or Multiemployer Plan.
“Post-Default
Rate” means a rate of interest per annum equal to the rate of interest otherwise in effect from time to time pursuant
to the terms of this Agreement plus 4.00%, or, if a rate of interest is not otherwise in effect, interest at the highest rate
specified herein for any Loan then outstanding prior to an Event of Default plus 4.00%.
“Pro
Rata Share” means, with respect to:
(a)
with respect to a Lender’s obligation to make the Term Loans on the Effective Date, the percentage obtained by dividing
(i) such Lender’s Effective Date Term Loan Commitment, by (ii) the Total Effective Date Term Loan Commitment;
(b)
with respect to a Lender’s obligation to make the Term Loans after the Effective Date and its right to receive payments
of the Unused Line Fee, the percentage obtained by dividing (i) such Lender’s Delayed Draw Term Loan Commitment, by (ii)
the Total Delayed Draw Term Loan Commitment;
(c)
with respect to a Lender’s right to receive payments of interest, fees (other than the Unused Line Fee), and principal with
respect to the Term Loans, the percentage obtained by dividing (i) the unpaid principal amount of such Lender’s portion
of the Term Loan, by (ii) the aggregate unpaid principal amount of the Term Loans;
(d)
with respect to all other matters (including, without limitation, the indemnification obligations arising under Section 10.05),
the percentage obtained by dividing (i) the sum of such Lender’s undrawn Term Loan Commitment and the unpaid principal amount
of such Lender’s portion of the Term Loans, by (ii) the sum of the undrawn Total Term Loan Commitment and the aggregate
unpaid principal amount of the Term Loans, provided that if the Total Term Loan Commitment has been reduced to zero, the
numerator shall be the aggregate unpaid principal amount of such Lender’s portion of the Term Loans and the denominator
shall be the aggregate unpaid principal amount of the Term Loans; and
(e)
after payment in full of all Loans, then the percentage obtained by dividing the aggregate unpaid principal amount of a Lender’s
portion of the Term Loan by the aggregate unpaid principal amount of the Term Loans, in each case, calculated on the date immediately
preceding the date that the Term Loans were paid in full.
“Process
Agent” has the meaning specified therefor in Section 12.10(b).
“Production
Plant Components” means the equipment set forth on Schedule 1.01(F), as such schedule is updated from time to time with
the approval of the Origination Agent after receipt of a Qualified Appraisal..
“Projections”
means financial projections of the Parent and its Subsidiaries delivered pursuant to Section 6.01(g)(ii), as updated from time
to time pursuant to Section 7.01(a)(vii).
“Qualified
Appraisal” means an appraisal (a) which is or was conducted by a qualified independent appraiser selected or approved
by the Origination Agent; (b) which will be or was conducted in such a manner and of such a scope as is acceptable to the Origination
Agent; and (c) the results of which are satisfactory to the Origination Agent.
“Qualified
Cash” means, as of any date of determination, the aggregate amount of unrestricted cash on-hand of the Loan Parties
maintained in deposit accounts in the name of a Loan Party in the United States as of such date, which deposit accounts are subject
to Control Agreements.
“Qualified
Equity Interests” means, with respect to any Person, all Equity Interests of such Person that are not Disqualified Equity
Interests.
“Qualified
Reserve Report” means, with respect to any Fiscal Year, a measurement and re-determination of the mineral reserves,
as of the end of such Fiscal Year, consisting of coal in which the Loan Parties have the exclusive work interest and right to
mine and sell (a) which is or was conducted by a qualified independent engineering firm approved by the Origination Agent; (b)
which will be or was conducted in such a manner (including the use of engineering practices and the use of basis pricing) and
of such a scope as is acceptable to the Origination Agent; and (c) the results of which are reasonably satisfactory to the Origination
Agent.
“Real
Property” means any estates or interests in real property now owned or hereafter acquired by any Loan Party, including
fixtures, and the improvements thereto.
“Real
Property Deliverables” means each of the following agreements, instruments and other documents in respect of each Facility,
each in form and substance reasonably satisfactory to the Agents and to the extent required by the Origination Agent:
(a)
a Mortgage duly executed by the applicable Loan Party,
(b)
evidence of the recording of each Mortgage in such office or offices as may be necessary or, in the reasonable opinion of the
Origination Agent, desirable to perfect the Lien purported to be created thereby or to otherwise protect the rights of the Agents
and the Lenders thereunder;
(c)
in the case of a leasehold interest, if required and requested by the Origination Agent, a consent between the lessor, the applicable
Loan Party with respect to such leasehold interest and the Collateral Agent;
(d)
if requested by the Origination Agent, an opinion of counsel, satisfactory to the Origination Agent, in the state where such Facility
is located with respect to the enforceability of the Mortgage to be recorded and such other matters as the Origination Agent may
reasonably request; and
(e)
such other agreements, instruments, appraisals and other documents (including guarantees and opinions of counsel) as any of the
Agents may reasonably require.
“Recipient”
means any Agent and any Lender, as applicable.
“Reclamation
Laws” means all laws relating to mining reclamation or reclamation liabilities, including, without limitation, the Surface
Mining Control and Reclamation Act of 1977, as amended, and all applicable state laws.
“Reclamation
Order” has the meaning specified therefor in Section 7.01(a)(iii).
“Reference
Rate” means, for any period, the greatest of (a) 4.25% per annum, (b) the Federal Funds Rate plus 0.50% per annum, (c)
the LIBOR Rate (which rate shall be calculated based upon an Interest Period of 1 month and shall be determined on a daily basis)
plus 1.00% per annum, and (d) the rate last quoted by The Wall Street Journal as the “Prime Rate” in the United States
or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve
Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or,
if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar
release by the Federal Reserve Board (as determined by the Administrative Agent). Each change in the Reference Rate shall be effective
from and including the date such change is publicly announced as being effective.
“Reference
Rate Loan” means each portion of a Loan that bears interest at a rate determined by reference to the Reference Rate.
“Register”
has the meaning specified therefor in Section 12.07(f).
“Registered
Intellectual Property” means Intellectual Property that is issued, registered, renewed or the subject of a pending application.
“Registered
Loans” has the meaning specified therefor in Section 12.07(f).
“Regulation
T”, “Regulation U” and “Regulation X” mean, respectively, Regulations T, U and
X of the Board or any successor, as the same may be amended or supplemented from time to time.
“Related
Fund” means, with respect to any Person, an Affiliate of such Person, or a fund or account managed by such Person or
an Affiliate of such Person.
“Related
Party Register” has the meaning specified therefor in Section 12.07(f).
“Release”
means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, seeping, migrating,
dumping or disposing of any Hazardous Material (including the abandonment or discarding of barrels, containers and other closed
receptacles containing any Hazardous Material) into the indoor or outdoor environment, including, without limitation, the movement
of Hazardous Materials through or in the ambient air, soil, surface or ground water, or property.
“Remedial
Action” means any action (a) to correct or address any actual, alleged or threatened non-compliance with any Environmental
Law or Environmental Permit, or (b) to clean up, remove, remediate, contain, treat, monitor, assess, evaluate, investigate, prevent,
minimize or in any other way address any environmental condition or the presence, Release or threatened Release of any Hazardous
Material (including the performance of pre-remedial studies and investigations and post-remedial operation and maintenance activities).
“Replacement
Lender” has the meaning specified therefor in Section 12.02(b).
“Reportable
Event” means an event described in Section 4043 of ERISA (other than an event not subject to the provision for 30-day
notice to the PBGC under the regulations promulgated under such Section).
“Required
Lenders” means the Origination Agent and Lenders whose Pro Rata Shares (calculated in accordance with clause (d) of
the definition thereof) aggregate at least 50.1%.
“Required
Prepayment Date” has the meaning specified therefor in Section 2.05(g).
“Requirements
of Law” means, with respect to any Person, collectively, the common law and all federal, state, provincial, local, foreign,
multinational or international laws, statutes, codes, treaties, standards, rules and regulations, guidelines, ordinances, orders,
judgments, writs, injunctions, decrees (including administrative or judicial precedents or authorities) and the interpretation
or administration thereof by, and other determinations, directives, requirements or requests of, any Governmental Authority, in
each case that are applicable to or binding upon such Person or any of its property or to which such Person or any of its property
is subject.
“Reserve
Percentage” means, on any day, for any Lender, the maximum percentage prescribed by the Board (or any successor Governmental
Authority) for determining the reserve requirements (including any basic, supplemental, marginal, or emergency reserves) that
are in effect on such date with respect to eurocurrency funding (currently referred to as “eurocurrency liabilities”)
of that Lender, but so long as such Lender is not required or directed under applicable regulations to maintain such reserves,
the Reserve Percentage shall be zero.
“Restricted
Payment” means (a) the declaration or payment of any dividend or other distribution, direct or indirect, on account
of any Equity Interests of any Loan Party or any of its Subsidiaries, now or hereafter outstanding, (b) the making of any repurchase,
redemption, retirement, defeasance, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect,
of any Equity Interests of any Loan Party or any direct or indirect parent of any Loan Party, now or hereafter outstanding, (c)
the making of any payment to retire, or to obtain the surrender of, any outstanding warrants, options or other rights for the
purchase or acquisition of shares of any class of Equity Interests of any Loan Party, now or hereafter outstanding, (d) the return
of any Equity Interests to any shareholders or other equity holders of any Loan Party or any of its Subsidiaries, or make any
other distribution of property, assets, shares of Equity Interests, warrants, rights, options, obligations or securities thereto
as such or (e) the payment of any management, consulting, monitoring or advisory fees or any other fees or expenses (including
the reimbursement thereof by any Loan Party or any of its Subsidiaries) pursuant to any management, consulting, monitoring, advisory
or other services agreement to any of the shareholders or other equityholders of any Loan Party or any of its Subsidiaries or
other Affiliates, or to any other Subsidiaries or Affiliates of any Loan Party.
“Rhino”
has the meaning specified therefor in the preamble hereto.
“Sale
and Leaseback Transaction” means, with respect to the Parent or any of its Subsidiaries, any arrangement, directly or
indirectly, with any Person whereby the Parent or any of its Subsidiaries shall sell or transfer any property used or useful in
its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property that it intends
to use for substantially the same purpose or purposes as the property being sold or transferred.
“SEC”
means the Securities and Exchange Commission or any other similar or successor agency of the Federal government administering
the Securities Act.
“Secured
Party” means any Agent, and any Lender.
“Securities
Act” means the Securities Act of 1933, as amended, or any similar Federal statute, and the rules and regulations of
the SEC thereunder, all as the same shall be in effect from time to time.
“Securitization”
has the meaning specified therefor in Section 12.07(l).
“Security”
and “Securities” means (a) any marketable capital stock, certificates and subscriptions, warrants, bonds, notes,
debentures, whether subordinated, convertible or otherwise, trust receipts and other securities of whatever kind or nature of
any Person, (b) any rights and options relating to the foregoing, including put and call options or any combination thereof written
by any Person, (c) any commodities and commodity futures contracts and future contracts (and options thereon) relating to stock
indices and United States Government securities, (d) any interest in a money market fund, and (e) any other asset deposited or
held from time to time in a securities account.
“Security
Agreement” means a Pledge and Security Agreement, in form and substance satisfactory to the Origination Agent and the
Collateral Agent, made by a Loan Party in favor of the Collateral Agent for the benefit of the Secured Parties securing the Obligations.
“Solvent”
means, with respect to any Person on a particular date, that on such date (a) the fair value of the property of such Person is
not less than the total amount of the 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 existing debts as they become
absolute and matured, (c) such Person is able to realize upon its assets and pay its debts and other liabilities, contingent obligations
and other commitments as they mature in the normal course of business, (d) such Person does not intend to, and does not believe
that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature, and (e)
such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such
Person’s property would constitute unreasonably small capital.
“Specified
Fee” means the fee designated as the “Specified Fee” in the Fee Letter.
“Standard
& Poor’s” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.
and any successor thereto.
“Subsidiary”
means, with respect to any Person at any date, any corporation, limited or general partnership, limited liability company, trust,
estate, association, joint venture or other business entity (a) the accounts of which would be consolidated with those of such
Person in such Person’s consolidated financial statements if such financial statements were prepared in accordance with
GAAP or (b) of which more than 50% of (i) the outstanding Equity Interests having (in the absence of contingencies) ordinary voting
power to elect a majority of the Board of Directors of such Person, (ii) in the case of a partnership or limited liability company,
the interest in the capital or profits of such partnership or limited liability company or (iii) in the case of a trust, estate,
association, joint venture or other entity, the beneficial interest in such trust, estate, association or other entity business
is, at the time of determination, owned or controlled directly or indirectly through one or more intermediaries, by such Person.
References to a Subsidiary shall mean a Subsidiary of the Parent unless the context expressly provides otherwise.
“Taxes”
means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments,
fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable
thereto.
“Term
Loan” means, collectively, (i) the loans made by the Term Loan Lenders to the Borrowers on the Effective Date pursuant
to Section 2.01(a)(i) and (ii) the loans made by the Delayed Draw Term Loan Lenders following the Effective Date pursuant to Section
2.01(a)(ii).
“Term
Loan Commitment” means, with respect to each Lender, such Lender’s Effective Date Term Loan Commitment and Delayed
Draw Term Loan Commitment.
“Term
Loan Lender” means a Lender with a Term Loan Commitment or a Term Loan.
“Term
Loan PIK Amount” means, as of any date of determination, the amount of all interest accrued with respect to the Term
Loan that has been paid in kind by being added to the balance thereof in accordance with Section 2.04(a).
“Termination
Event” means (a) a Reportable Event with respect to any Employee Plan, (b) any event that causes any Loan Party or any
of its ERISA Affiliates to incur liability under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212
of ERISA or Section 4971 or 4975 of the Internal Revenue Code, (c) the filing of a notice of intent to terminate an Employee Plan
or the treatment of an Employee Plan amendment as a termination under Section 4041 of ERISA, (d) the institution of proceedings
by the PBGC to terminate an Employee Plan, or (e) any other event or condition that could reasonably be expected to constitute
grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Employee Plan.
“Total
Delayed Draw Term Loan Commitment” means the sum of the amounts of the Lenders’ Delayed Draw Term Loan Commitments.
“Total
Effective Date Term Loan Commitment” means the sum of the amounts of the Lenders’ Effective Date Term Loan Commitments.
“Total
Term Loan Commitment” means the sum of the amounts of the Lenders’ Effective Date Term Loan Commitments and Delayed
Draw Term Loan Commitments.
“UCC
Filing Authorization Letter” means a letter duly executed by each Loan Party authorizing the Collateral Agent to file
appropriate financing statements on Form UCC-1 without the signature of such Loan Party in such office or offices as may be necessary
or, in the opinion of the Origination Agent, desirable to perfect the security interests purported to be created by each Security
Agreement and each Mortgage.
“Uniform
Commercial Code” or “UCC” has the meaning specified therefor in Section 1.04.
“Unused
Line Fee” has the meaning specified therefor in Section 2.06(a).
“USA
PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (PATRIOT) Act of 2001 (Title III of Pub. L. 107-56, Oct. 26, 2001)) as amended by the USA Patriot Improvement and Reauthorization
Act of 2005 (Pub. L. 109-177, March 9, 2006) and as the same may have been or may be further renewed, extended, amended, or replaced.
“U.S.
Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Internal
Revenue Code.
“Waivable
Mandatory Prepayment” has the meaning specified therefor in Section 2.05(g).
“WARN”
has the meaning specified therefor in Section 6.01(p).
“Withholding
Agent” means any Loan Party, the Administrative Agent and the Collateral Agent.
“Working
Capital” means, at any date of determination thereof, (a) the sum, for any Person and its Subsidiaries, of (i) the unpaid
face amount of all Accounts of such Person and its Subsidiaries as at such date of determination, plus (ii) the aggregate
amount of prepaid expenses and other current assets of such Person and its Subsidiaries as at such date of determination (other
than cash, Cash Equivalents and any Indebtedness owing to such Person or any of its Subsidiaries by Affiliates of such Person),
minus (b) the sum, for such Person and its Subsidiaries, of (i) the unpaid amount of all accounts payable of such Person
and its Subsidiaries as at such date of determination, plus (ii) the aggregate amount of all accrued expenses of such Person
and its Subsidiaries as at such date of determination (other than the current portion of long-term debt and all accrued interest
and taxes).
Section
1.02 Terms Generally. 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, (a) any definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in
its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules
shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words “asset”
and “property” shall be construed to have the same meaning and effect and to refer to any right or interest in or
to assets and properties of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.
Section
1.03 Certain Matters of Construction. References in this Agreement to “determination” by any Agent include
reasonable good faith estimates by such Agent (in the case of quantitative determinations) and reasonable good faith beliefs by
such Agent (in the case of qualitative determinations). A Default or Event of Default shall be deemed to exist at all times during
the period commencing on the date that such Default or Event of Default occurs to the date on which such Default or Event of Default
is waived in writing pursuant to this Agreement or, in the case of a Default, is cured within any period of cure expressly provided
for in this Agreement; and an Event of Default shall “continue” or be “continuing” until such Event of
Default has been waived in writing by the Required Lenders. Any Lien referred to in this Agreement or any other Loan Document
as having been created in favor of any Agent, any agreement entered into by any Agent pursuant to this Agreement or any other
Loan Document, any payment made by or to or funds received by any Agent pursuant to or as contemplated by this Agreement or any
other Loan Document, or any act taken or omitted to be taken by any Agent, shall, unless otherwise expressly provided, be created,
entered into, made or received, or taken or omitted, for the benefit or account of the Agents and the Lenders. Wherever the phrase
“to the knowledge of any Loan Party” or words of similar import relating to the knowledge or the awareness of any
Loan Party are used in this Agreement or any other Loan Document, such phrase shall mean and refer to (i) the actual knowledge
of a senior officer of any Loan Party or (ii) the knowledge that a senior officer would have obtained if such officer had engaged
in good faith and diligent performance of such officer’s duties, including the making of such reasonably specific inquiries
as may be necessary of the employees or agents of such Loan Party and a good faith attempt to ascertain the existence or accuracy
of the matter to which such phrase relates. All covenants hereunder shall be given independent effect so that if a particular
action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or otherwise
within the limitations of, another covenant shall not avoid the occurrence of a default if such action is taken or condition exists.
In addition, all representations and warranties hereunder shall be given independent effect so that if a particular representation
or warranty proves to be incorrect or is breached, the fact that another representation or warranty concerning the same or similar
subject matter is correct or is not breached will not affect the incorrectness of a breach of a representation or warranty hereunder.
Section
1.04 Accounting and Other Terms
(a)
Unless otherwise expressly provided herein, each accounting term used herein shall have the meaning given it under GAAP. For purposes
of determining compliance with any incurrence or expenditure tests set forth in Section 7.01, Section 7.02 and Section 7.03, any
amounts so incurred or expended (to the extent incurred or expended in a currency other than Dollars) shall be converted into
Dollars on the basis of the exchange rates (as shown on the Bloomberg currency page for such currency or, if the same does not
provide such exchange rate, by reference to such other publicly available service for displaying exchange rates as may be reasonably
selected by the Agents or, in the event no such service is selected, on such other basis as is reasonably satisfactory to the
Agents) as in effect on the date of such incurrence or expenditure under any provision of any such Section that has an aggregate
Dollar limitation provided for therein (and to the extent the respective incurrence or expenditure test regulates the aggregate
amount outstanding at any time and it is expressed in terms of Dollars, all outstanding amounts originally incurred or spent in
currencies other than Dollars shall be converted into Dollars on the basis of the exchange rates (as shown on the Bloomberg currency
page for such currency or, if the same does not provide such exchange rate, by reference to such other publicly available service
for displaying exchange rates as may be reasonably selected by the Agents or, in the event no such service is selected, on such
other basis as is reasonably satisfactory to the Agents) as in effect on the date of any new incurrence or expenditures made under
any provision of any such Section that regulates the Dollar amount outstanding at any time). Notwithstanding the foregoing, (i)
with respect to the accounting for leases as either operating leases or capital leases and the impact of such accounting in accordance
with FASB ASC 840 on the definitions and covenants herein, GAAP as in effect on the Effective Date shall be applied and (ii) for
purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness
of the Parent and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the
effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.
(b)
All terms used in this Agreement which are defined in Article 8 or Article 9 of the Uniform Commercial Code as in effect from
time to time in the State of New York (the “Uniform Commercial Code” or the “UCC”) and which
are not otherwise defined herein shall have the same meanings herein as set forth therein, provided that terms used herein which
are defined in the Uniform Commercial Code as in effect in the State of New York on the date hereof shall continue to have the
same meaning notwithstanding any replacement or amendment of such statute except as any Agent may otherwise determine.
Section
1.05 Time References. Unless otherwise indicated herein, all references to time of day refer to Eastern Standard Time or
Eastern daylight saving time, as in effect in New York City on such day. For purposes of the computation of a period of time from
a specified date to a later specified date, the word “from” means “from and including” and the words “to”
and “until” each means “to but excluding”; provided, however, that with respect to a computation
of fees or interest payable to any Secured Party, such period shall in any event consist of at least one full day.
ARTICLE
II
THE LOANS
Section
2.01 Commitments. (a) Subject to the terms and conditions and relying upon the representations and warranties herein set
forth:
(i)
each Lender with an Effective Date Term Loan Commitment agrees, severally and not jointly, to make or cause to be made on the
Effective Date, a Term Loan to the Borrowers in an aggregate principal amount not to exceed its Effective Date Term Loan Commitment
and the Term Loans of all Lenders made on the Effective Date shall be in an aggregate principal amount not to exceed the Total
Effective Date Term Loan Commitment.
(ii)
each Lender with a Delayed Draw Term Loan Commitment agrees, severally and not jointly, to make or cause to be made, from time
to time after the Effective Date and prior to the Delayed Draw Term Loan Commitment Termination Date, Term Loans to the Borrowers
in an aggregate principal amount not to exceed the lesser of (A) its Delayed Draw Pro Rata Share of such Term Loan and (B) its
Delayed Draw Term Loan Commitment; provided, that, such Term Loans shall be subject to the terms of Section 5.02 of this
Agreement.
(b)
Notwithstanding the foregoing:
(i)
The aggregate principal amount of all Term Loans made on the Effective Date pursuant to this Agreement shall not exceed the Total
Effective Date Term Loan Commitment.
(ii)
The aggregate principal amount of all Term Loans made after the Effective Date pursuant to the Delayed Draw Term Loan Commitment
pursuant to this Agreement shall not exceed the Total Delayed Draw Term Loan Commitment.
(iii)
The Total Effective Date Term Loan Commitment shall be permanently terminated immediately and without further action upon the
funding of the Term Loan on the Effective Date. The Total Delayed Draw Term Loan Commitment shall be permanently reduced immediately
and without further action upon the funding of each Term Loan after the Effective Date in an amount equal to such funded Term
Loan; provided, that, for the avoidance of doubt, any interest that is paid by capitalizing such interest and adding such
capitalized interest to the then outstanding principal amount of the Term Loan pursuant to Section 2.04(a) shall not reduce the
Total Delayed Draw Term Loan Commitment. Each Lender’s Effective Date Term Loan Commitment shall be permanently terminated
immediately and without further action upon the funding of the Term Loan on the Effective Date. Each Lender’s Delayed Draw
Term Loan Commitment shall be permanently reduced immediately and without further action upon the funding of each Term Loan after
the Effective Date made pursuant to a Delayed Draw Term Loan Commitment in an amount equal to such Lender’s Delayed Draw
Pro Rata Share of such funded Term Loan; provided, that, for the avoidance of doubt, any interest that is paid by capitalizing
such interest and adding such capitalized interest to the then outstanding principal amount of the Term Loan pursuant to Section
2.04(a) shall not reduce such Lender’s Delayed Draw Term Loan Commitment. Notwithstanding the foregoing, the undrawn Total
Delayed Draw Term Loan Commitment and each Lender’s Delayed Draw Term Loan Commitment shall terminate immediately and without
further action on the Delayed Draw Term Loan Commitment Termination Date after giving effect to the funding of any Lender’s
Term Loan on such date. Any principal amount of the Term Loans which is repaid or prepaid may not be reborrowed.
Section
2.02 Making the Loans. (a) The Administrative Borrower shall give the Administrative Agent written notice in substantially
the form of Exhibit C hereto (a “Notice of Borrowing”)), not later than 12:00 noon (New York City time) on
the date which is 3 Business Days (or, in the case of any Delayed Draw Term Loan, 10 Business Days) prior to the date of the proposed
Loan (or such shorter period as the Origination Agent and the Administrative Agent are willing to accommodate from time to time,
but in no event later than 12:00 noon (New York City time) on the borrowing date of the proposed Loan). Such Notice of Borrowing
shall be irrevocable and shall specify (i) the principal amount of the proposed Loan, (ii) the use of the proceeds of such proposed
Loan, (iii) whether the Loan is requested to be a Reference Rate Loan or a LIBOR Rate Loan and in the case of a LIBOR Rate Loan,
the initial Interest Period with respect thereto, (iv) the proposed borrowing date, which must be a Business Day, and, with respect
to the Effective Date Term Loan, must be the Effective Date, and (v) the wire instructions for the account or accounts to which
the proposed Loan funds should be transferred. The Administrative Agent and the Lenders may act without liability upon the basis
of written notice believed by the Administrative Agent in good faith to be from the Administrative Borrower (or from any Authorized
Officer thereof designated in writing purportedly from the Administrative Borrower to the Administrative Agent). The Administrative
Agent and the Lenders shall have no duty to verify the authenticity of the signature appearing on any written Notice of Borrowing.
Upon its receipt of a Notice of Borrowing, the Administrative Agent shall promptly notify each Lender, and thereafter each Lender
shall make the amount of its applicable Term Loan Commitment available to the Administrative Agent in immediately available funds
no later than 1:00 p.m. (New York City time) on the date of the proposed Loan. Upon receipt of all Loan funds, the Administrative
Agent shall promptly transfer such funds to the Administrative Borrower by wire transfer in immediately available funds to the
account or accounts designated in the Notice of Borrowing.
(b)
Each Notice of Borrowing pursuant to this Section 2.02 shall be irrevocable and the Borrowers shall be bound to make a borrowing
in accordance therewith. Each Delayed Draw Term Loan shall be made in a minimum amount of $5,000,000 and shall be in an integral
multiple of $500,000.
(c)
Except as otherwise provided in this Section 2.02(c), all Loans under this Agreement shall be made by the Lenders simultaneously
and proportionately to their Effective Date Pro Rata Shares of the Total Effective Date Term Loan Commitment and Delayed Draw
Pro Rata Shares of the Total Delayed Draw Term Loan Commitment, as applicable, it being understood that no Lender shall be responsible
for any default by any other Lender in that other Lender’s obligations to make a Loan requested hereunder, nor shall the
Commitment of any Lender be increased or decreased as a result of the default by any other Lender in that other Lender’s
obligation to make a Loan requested hereunder, and each Lender shall be obligated to make the Loans required to be made by it
by the terms of this Agreement regardless of the failure by any other Lender.
Section
2.03 Repayment of Loans; Evidence of Debt. (a) The outstanding principal amount of the Term Loan shall be repayable on
the last Business Day of each calendar quarter in an amount equal to $375,000, commencing on December 31, 2018; provided,
however, that the last such installment shall be in the amount necessary to repay in full the unpaid principal amount of
the Term Loan. The outstanding unpaid principal amount of the Term Loan, and all accrued and unpaid interest thereon, shall be
due and payable on the earliest of (i) the Final Maturity Date and (ii) the date on which the Term Loan is declared due and payable
pursuant to the terms of this Agreement.
(b)
Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the Indebtedness of the Borrowers
to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid
to such Lender from time to time hereunder.
(c)
The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, (ii) the
amount of any principal or interest due and payable or to become due and payable from the Borrowers to each Lender hereunder and
(iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s
share thereof.
(d)
The entries made in the accounts maintained pursuant to Section 2.03(b) or Section 2.03(c) shall be prima facie evidence
of the existence and amounts of the obligations recorded therein; provided that (i) the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrowers to repay the
Loans in accordance with the terms of this Agreement and (ii) in the event of any conflict between the entries made in the accounts
maintained pursuant to Section 2.03(b) and the accounts maintained pursuant to Section 2.03(c), the accounts maintained pursuant
to Section 2.03(c) shall govern and control.
(e)
Any Lender may request that Loans made by it be evidenced by a promissory note. In such event, the Borrowers shall execute and
deliver to such Lender a promissory note payable to the order of such Lender (or, if requested by such Lender, to such Lender
and its registered assigns) in the form of Exhibit F hereto. Thereafter, the Loans evidenced by such promissory note and interest
thereon shall at all times (including after assignment pursuant to Section 12.07) be represented by one or more promissory notes
in such form payable to the order of the payee named therein (or, if such promissory note is a registered note, to such payee
and its registered assigns).
Section
2.04 Interest.
(a)
Term Loan. Subject to the terms of this Agreement, at the option of the Administrative Borrower, the Term Loan (including,
without limitation, the Term Loan PIK Amount relating thereto) or any portion thereof shall be either a Reference Rate Loan or
a LIBOR Rate Loan. Each portion of the Term Loan that is a Reference Rate Loan shall bear interest on the principal amount thereof
from time to time outstanding, from the date of the Term Loan until repaid, at a rate per annum equal to the Reference Rate plus
the Applicable Margin, and each portion of the Term Loan that is a LIBOR Rate Loan shall bear interest on the principal amount
thereof from time to time outstanding, from the date of the Term Loan until repaid, at a rate per annum equal to the LIBOR Rate
for the Interest Period in effect for the Term Loan (or such portion thereof) plus the Applicable Margin; provided that
so long as no Event of Default has occurred and is continuing, the Administrative Borrower may elect in a writing delivered to
the Agents no later than the fifth (5th) Business Day prior to the applicable payment date, to have interest accruing
at a rate per annum equal to 6.00% to be paid by capitalizing such interest and adding such capitalized interest to the then outstanding
principal amount of the Term Loan (the “PIK Option”) (it being understood and agreed that any portion of such
interest that has accrued pursuant to this Section 2.04 that is not permitted to be capitalized shall be paid in cash). Any interest
to be so capitalized pursuant to this clause (a) shall be capitalized, in arrears, on the fifth (5th) Business Day
of each month (commencing on the fifth (5th) Business Day of the month following the month on which such Term Loan
PIK Amount is incurred) and added to the then outstanding principal amount of the Term Loan and, thereafter, shall bear interest
as provided hereunder as if it had originally been part of the outstanding principal of the Term Loan.
(b)
Default Interest. To the extent permitted by law and notwithstanding anything to the contrary in this Section, upon the
occurrence and during the continuance of an Event of Default, the principal (including the Term Loan PIK Amount) of, and all accrued
and unpaid interest on, all Loans, fees, indemnities or any other Obligations of the Loan Parties under this Agreement and the
other Loan Documents, shall bear interest, from the date such Event of Default occurred until the date such Event of Default is
cured or waived in writing in accordance herewith, at a rate per annum equal at all times to the Post-Default Rate.
(c)
Interest Payment. Interest (other than the Term Loan PIK Amount, which shall be capitalized in accordance with Section
2.04(a)) on each Loan shall be payable (i) with respect to any Reference Rate Loans, monthly, in arrears, on the fifth (5th)
Business Day of each month, commencing on the fifth (5th) Business Day of the month following the month in which such
Loan is made, (ii) with respect to any LIBOR Rate Loans, on the last day of each applicable Interest Period, and for any Interest
Period that longer than one month, on each one-month anniversary of the first date (or if there is no numerically corresponding
date, the last day of each such month) of such Interest Period, and (iii) at maturity (whether upon demand, by acceleration or
otherwise. Interest at the Post-Default Rate shall be payable on demand. Each Borrower hereby authorizes the Administrative Agent
to, and the Administrative Agent may, from time to time, charge the Loan Account pursuant to Section 4.01 with the amount of any
interest payment due hereunder.
(d)
General. All interest shall be computed on the basis of a year of 360 days for the actual number of days elapsed and calculated
from and including the date of such Loan to but excluding the date of repayment thereof.
Section
2.05 Reduction of Commitment; Prepayment of Loans.
(a)
Reduction of Commitments. Each of (i) the Total Effective Date Term Loan Commitment and the Total Delayed Draw Term Loan
Commitment and (ii) the Total Term Loan Commitment, the Effective Date Term Loan Commitment and the Delayed Draw Term Loan Commitment
of each Lender, shall be terminated or reduced, as applicable, in accordance with Section 2.01(b).
(b)
Optional Prepayment.
(i)
Term Loan. The Borrowers may, at any time and from time to time, upon at least 5 Business Days’ prior written notice
to the Administrative Agent, prepay the principal of the Term Loan, in whole or in part. Each prepayment made pursuant to this
Section 2.05(b)(i) shall be accompanied by the payment of (A) accrued interest to the date of such payment on the amount prepaid
and (B) the Applicable Premium, if any, payable in connection with such prepayment of the Term Loan. Each such prepayment shall
be applied against the remaining installments of principal due on the Term Loan in the inverse order of maturity.
(ii)
Termination of Agreement. The Borrowers may, upon at least 30 days prior written notice to the Administrative Agent, terminate
this Agreement by paying to the Administrative Agent, in cash, the Obligations, in full, plus the Applicable Premium, if any,
payable in connection with such termination of this Agreement. If the Administrative Borrower has sent a notice of termination
pursuant to this Section 2.05(b)(ii), then the Lenders’ obligations to extend credit hereunder shall terminate and the Borrowers
shall be obligated to repay the Obligations, in full, plus the Applicable Premium, if any, payable in connection with such termination
of this Agreement on the date set forth as the date of termination of this Agreement in such notice.
(c)
Mandatory Prepayment. Upon at least 2 Business Days’ prior written notice to the Administrative Agent, Borrowers
shall make the following mandatory prepayments of the Loans.
(i)
Contemporaneously with the delivery to the Agents and the Lenders of audited annual financial statements pursuant to Section 7.01(a)(i),
commencing with the delivery to the Agents and the Lenders of the financial statements for the Fiscal Year ended December 31,
2019 or, if such financial statements are not delivered to the Agents and the Lenders on the date such statements are required
to be delivered pursuant to Section 7.01(a)(i), on the date such statements are required to be delivered to the Agents and the
Lenders pursuant to Section 7.01(a)(i), the Borrowers shall prepay the outstanding principal amount of the Loans in accordance
with Section 2.05(d) in an amount equal to 25% of the Excess Cash Flow of the Parent and its Subsidiaries for such Fiscal Year.
(ii)
Within 2 Business Days after any Disposition (excluding Dispositions which qualify as Permitted Dispositions under clauses (a),
(b), (c), (d), or (e) of the definition of Permitted Disposition) by any Loan Party or its Subsidiaries resulting in Net Cash
Proceeds received by all Loan Parties and their Subsidiaries for all Dispositions (excluding Dispositions which qualify as Permitted
Dispositions under clauses (a), (b), (c), (d), or (e) of the definition of Permitted Disposition) in a Fiscal Year, the Borrowers
shall prepay the outstanding principal amount of the Loans in accordance with Section 2.05(d) in an amount equal to (A) 100% of
the Net Cash Proceeds received by all Loan Parties and their Subsidiaries (and not paid to the Administrative Agent as a prepayment
of the Loans) in such Fiscal Year less (B) $2,000,000; provided, that, notwithstanding the foregoing, the Borrowers
shall be required to prepay the outstanding principal amount of the Loans in accordance with Section 2.05(d) in an amount equal
to 100% of the Net Cash Proceeds received by such Person in connection with any Disposition of any Eligible Securities and/or
Eligible Real Property. Nothing contained in this Section 2.05(c)(ii) shall permit any Loan Party or any of its Subsidiaries to
make a Disposition of any property other than in accordance with Section 7.02(c)(ii).
(iii)
Within 2 Business Days after the issuance or incurrence by any Loan Party or any of its Subsidiaries of any Indebtedness (other
than Permitted Indebtedness), or upon an Equity Issuance (other than any Excluded Equity Issuances), the Borrowers shall prepay
the outstanding amount of the Loans in accordance with Section 2.05(d) in an amount equal to 100% of the Net Cash Proceeds received
by such Person in connection therewith. The provisions of this Section 2.05(c)(iii) shall not be deemed to be implied consent
to any such issuance, incurrence or sale otherwise prohibited by the terms and conditions of this Agreement.
(iv)
Within 2 Business Days after the receipt by any Loan Party or any of its Subsidiaries of any Extraordinary Receipts, the Borrowers
shall prepay the outstanding principal of the Loans in accordance with Section 2.05(d) in an amount equal to 100% of the Net Cash
Proceeds received by such Person in connection therewith.
(v)
Notwithstanding the foregoing, with respect to Net Cash Proceeds received by any Loan Party or any of its Subsidiaries in connection
with a Disposition or the receipt of Extraordinary Receipts consisting of insurance proceeds or condemnation awards that are required
to be used to prepay the Obligations pursuant to Section 2.05(c)(ii) or Section 2.05(c)(iv), as the case may be, up to $500,000
in the aggregate during the term of this Agreement of the Net Cash Proceeds from all such Dispositions and Extraordinary Receipts
shall not be required to be so used to prepay the Obligations to the extent that such Net Cash Proceeds are used to replace, repair
or restore properties or assets (other than current assets) used in such Person’s business, provided that, (A) no
Default or Event of Default has occurred and is continuing on the date such Person receives such Net Cash Proceeds, (B) the Administrative
Borrower delivers a certificate to the Administrative Agent within 5 days after such Disposition or loss, destruction or taking,
as the case may be, stating that such Net Cash Proceeds shall be used to replace, repair or restore properties or assets used
in such Person’s business within a period specified in such certificate not to exceed 180 days after the date of receipt
of such Net Cash Proceeds (which certificate shall set forth estimates of the Net Cash Proceeds to be so expended), (C) such Net
Cash Proceeds are deposited in an account subject to a Control Agreement, and (D) upon the earlier of (1) the expiration of the
period specified in the relevant certificate furnished to the Administrative Agent pursuant to clause (B) above or (2) the occurrence
of a Default or an Event of Default, such Net Cash Proceeds, if not theretofore so used, shall be used to prepay the Obligations
in accordance with Section 2.05(c)(ii) or Section 2.05(c)(iv) as applicable.
(vi)
The Borrowers will immediately prepay the Term Loans at any time when the aggregate principal amount of all Term Loans exceeds
the Collateral Coverage Amount, to the full extent of any such excess. On each day that any Term Loans are outstanding, the Borrowers
shall hereby be deemed to represent and warrant to the Agents and the Lenders that the Collateral Coverage Amount calculated as
of such day equals or exceeds the aggregate principal amount of all Term Loans outstanding on such day.
(d)
Application of Payments. Each prepayment pursuant to Section 2.05(c) shall be applied, to the Term Loan, until paid in
full. Each such prepayment of the Term Loan shall be applied against the remaining installments of principal of the Term Loan
in the inverse order of maturity. Notwithstanding the foregoing, after the occurrence and during the continuance of an Event of
Default, if the Administrative Agent has received prior written notice from the Origination Agent or the Required Lenders, to
apply payments in respect of any Obligations in accordance with Section 4.03(b), prepayments required under Section 2.05(c) shall
be applied in the manner set forth in Section 4.03(b).
(e)
Interest and Fees. Any prepayment made pursuant to this Section 2.05 shall be accompanied by (i) accrued interest on the
principal amount being prepaid to the date of prepayment, (ii) any Funding Losses payable pursuant to Section 2.08, and (iii)
the Applicable Premium, if any, payable in connection with such prepayment of the Loans to the extent required under Section 2.06(b).
(f)
Cumulative Prepayments. Except as otherwise expressly provided in this Section 2.05, payments with respect to any subsection
of this Section 2.05 are in addition to payments made or required to be made under any other subsection of this Section 2.05.
(g)
Waivable Mandatory Prepayment. Anything contained herein to the contrary notwithstanding, in the event the Borrowers are
required to make any mandatory prepayment (a “Waivable Mandatory Prepayment”) of the Term Loans, at least two
(2) Business Days prior to the date on which the Borrowers are required to make such Waivable Mandatory Prepayment (the “Required
Prepayment Date”), the Administrative Borrower shall notify the Administrative Agent in writing of the amount of such
prepayment, and the Administrative Agent will promptly thereafter notify each Lender holding an outstanding Term Loans of the
amount of such Lender’s Pro Rata Share of such Waivable Mandatory Prepayment and such Lender’s option to refuse all
or any portion of such amount. Each such Lender may exercise such option by giving written notice to the Administrative Borrower
and the Administrative Agent of its election to do so at least one (1) Business Day prior to the Required Prepayment Date (it
being understood that any Lender which does not so notify the Administrative Borrower and the Administrative Agent of its election
to exercise such option shall be deemed to have elected not to exercise such option). On the Required Prepayment Date, the Borrowers
shall pay to the Administrative Agent the amount of the Waivable Mandatory Prepayment, which amount shall be applied (i) in an
amount equal to that portion of the Waivable Mandatory Prepayment payable to those Lenders that have elected not to exercise such
option or that have elected to exercise such option in part (and, in the case of any Lender that has elected to exercise such
option in part, only that portion of such payment for which such Lender has not made such election), to prepay the Term Loans
of such Lenders, and (ii) to the extent of any excess, to the Borrowers.
Section
2.06 Fees.
(a)
Unused Line Fee. From and after the Effective Date and until the Delayed Draw Term Loan Commitment Termination Date, the
Borrowers shall pay to the Administrative Agent for the account of the Lenders, in accordance with their Delayed Draw Pro Rata
Shares, monthly in arrears on the fifth (5th) Business Day of each month, commencing on the fifth (5th)
Business Day of the month following the Effective Date, an unused line fee (the “Unused Line Fee”), which shall
accrue at the rate per annum of 1.50% on the undrawn amount, if any, of the Total Delayed Draw Term Loan Commitment.
(b)
Applicable Premium.
(i)
Upon the occurrence of an Applicable Premium Trigger Event, the Borrower shall pay to the Administrative Agent, for the ratable
account of the Lenders in accordance with a written agreement among the Agents and the Lenders, the Applicable Premium.
(ii)
Any Applicable Premium payable in accordance with this Section 2.06(b) shall be presumed to be equal to the liquidated damages
sustained by the Lenders as the result of the occurrence of the Applicable Premium Trigger Event and the Loan Parties agree that
it is reasonable under the circumstances currently existing. THE LOAN PARTIES EXPRESSLY WAIVE THE PROVISIONS OF ANY PRESENT OR
FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING APPLICABLE PREMIUM IN CONNECTION WITH ANY
ACCELERATION.
(iii)
The Loan Parties expressly agree that: (A) the Applicable Premium is reasonable and is the product of an arm’s length transaction
between sophisticated business people, ably represented by counsel; (B) the Applicable Premium shall be payable notwithstanding
the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between the Lenders and the
Loan Parties giving specific consideration in this transaction for such agreement to pay the Applicable Premium; (D) the Loan
Parties shall be estopped hereafter from claiming differently than as agreed to in this paragraph; (E) their agreement to pay
the Applicable Premium is a material inducement to Lenders to provide the Commitments and make the Loans, and (F) the Applicable
Premium represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Agents and the Lenders
and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Agents and the Lenders
or profits lost by the Agents and the Lenders as a result of such Applicable Premium Trigger Event.
(iv)
Nothing contained in this Section 2.06(b) shall permit any prepayment of the Loans or reduction of the Commitments not otherwise
permitted by the terms of this Agreement or any other Loan Document.
(c)
Audit and Collateral Monitoring Fees. The Borrowers acknowledge that pursuant to Section 7.01(f), representatives of the
Agents, or their designees, may visit any or all of the Loan Parties and/or conduct inspections, audits, physical counts, valuations,
appraisals, environmental site assessments and/or examinations of any or all of the Loan Parties at any time and from time to
time. The Borrowers agree to pay (i) $1,500 per day per examiner plus the examiner’s out-of-pocket costs and reasonable
expenses incurred in connection with all such visits, inspections, audits, physical counts, valuations, appraisals, environmental
site assessments and/or examinations and (ii) the cost of all visits, inspections, audits, physical counts, valuations, appraisals,
environmental site assessments and/or examinations conducted by a third party on behalf of the Agents.
(d)
Fee Letter. As and when due and payable under the terms of the Fee Letter, the Borrowers shall pay the fees set forth in
the Fee Letter.
Section
2.07 LIBOR Option.
(a)
The Borrowers may, at any time and from time to time, so long as no Default or Event of Default has occurred and is continuing,
elect to have interest on all or a portion of the Loans be charged at a rate of interest based upon the LIBOR Rate (the “LIBOR
Option”) by notifying the Administrative Agent prior to 11:00 a.m. (New York City time) at least 3 Business Days prior
to (i) the proposed borrowing date of a Loan (as provided in Section 2.02), (ii) in the case of the conversion of a Reference
Rate Loan to a LIBOR Rate Loan, the commencement of the proposed Interest Period or (iii) in the case of the continuation of a
LIBOR Rate Loan as a LIBOR Rate Loan, the last day of the then current Interest Period (the “LIBOR Deadline”).
Notice of the Borrowers’ election of the LIBOR Option for a permitted portion of the Loans and an Interest Period pursuant
to this Section 2.07(a) shall be made by delivery to the Administrative Agent of (A) a Notice of Borrowing (in the case of the
initial making of a Loan) in accordance with Section 2.02 or (B) a LIBOR Notice prior to the LIBOR Deadline. Promptly upon its
receipt of each such LIBOR Notice, the Administrative Agent shall provide notice thereof to each of the Lenders. Each LIBOR Notice
shall be irrevocable and binding on the Borrowers.
(b)
Interest on LIBOR Rate Loans shall be payable in accordance with Section 2.04(d). On the last day of each applicable Interest
Period, unless the Borrowers properly have exercised the LIBOR Option with respect thereto, the interest rate applicable to such
LIBOR Rate Loans automatically shall convert to the rate of interest then applicable to Reference Rate Loans of the same type
hereunder. At any time that a Default or an Event of Default has occurred and is continuing, the Borrowers no longer shall have
the option to request that any portion of the Loans bear interest at the LIBOR Rate and the Administrative Agent shall have the
right, at the direction of the Origination Agent, to convert the interest rate on all outstanding LIBOR Rate Loans to the rate
of interest then applicable to Reference Rate Loans of the same type hereunder on the last day of the then current Interest Period.
(c)
Notwithstanding anything to the contrary contained in this Agreement, the Borrowers (i) shall have not more than three (3) LIBOR
Rate Loans in effect at any given time, and (ii) only may exercise the LIBOR Option for LIBOR Rate Loans of at least $500,000
and integral multiples of $100,000 in excess thereof.
(d)
The Borrowers may prepay LIBOR Rate Loans at any time; provided, however, that in the event that LIBOR Rate Loans are prepaid
on any date that is not the last day of the Interest Period applicable thereto, including as a result of any mandatory prepayment
pursuant to Section 2.05(c) or any application of payments or proceeds of Collateral in accordance with Section 4.03 or Section
4.04 or for any other reason, including early termination of the term of this Agreement or acceleration of all or any portion
of the Obligations pursuant to the terms hereof, the Borrowers shall indemnify, defend, and hold the Agents and the Lenders and
their participants harmless against any and all Funding Losses in accordance with Section 2.08.
(e)
Anything to the contrary contained herein notwithstanding, neither any Agent nor any Lender, nor any of their participants, is
required actually to acquire eurodollar deposits to fund or otherwise match fund any Obligation as to which interest accrues at
the LIBOR Rate. The provisions of this Article II shall apply as if each Lender or its participants had match funded any Obligation
as to which interest is accruing at the LIBOR Rate by acquiring eurodollar deposits for each Interest Period in the amount of
the LIBOR Rate Loans.
(f)
If prior to the commencement of any Interest Period for any LIBOR Rate Loan,
(i)
the Administrative Agent shall have determined that adequate and reasonable means do not exist for ascertaining LIBOR for such
Interest Period, including, without limitation, because the Administrative Agent determines that either inadequate or insufficient
quotations of the London interbank offered rate exist or the use of “LIBOR” has been discontinued (any determination
of Administrative Agent to be conclusive and binding absent manifest error), or
(ii)
the Administrative Agent shall have received notice from the Required Lenders that LIBOR does not adequately and fairly reflect
the cost to such Lenders of making, funding or maintaining their LIBOR Rate Loans for such Interest Period,
then
the Administrative Agent shall give written notice to the Administrative Borrower and to the Lenders as soon as practicable thereafter.
Until the Administrative Agent shall notify the Administrative Borrower and the Lenders that the circumstances giving rise to
such notice no longer exist, (A) the obligations of the Lenders to make LIBOR Rate Loans, or to continue or convert outstanding
Loans as or into LIBOR Rate Loans, shall be suspended and (B) all such affected Loans shall be converted into Reference Rate Loans
on the last day of the then current Interest Period applicable thereto.
Section
2.08 Funding Losses. In connection with each LIBOR Rate Loan, the Borrowers shall indemnify, defend, and hold the Agents
and the Lenders harmless against any loss, cost, or expense incurred by any Agent or any Lender as a result of (a) the payment
of any principal of any LIBOR Rate Loan other than on the last day of an Interest Period applicable thereto (including as a result
of a Default or an Event of Default or any mandatory prepayment required pursuant to Section 2.05(c)), (b) the conversion of any
LIBOR Rate Loan other than on the last day of the Interest Period applicable thereto (including as a result of a Default or an
Event of Default), or (c) the failure to borrow, convert, continue or prepay any LIBOR Rate Loan on the date specified in any
Notice of Borrowing or LIBOR Notice delivered pursuant hereto (such losses, costs, and expenses, collectively, “Funding
Losses”). Funding Losses shall, with respect to any Agent or any Lender, be deemed to equal the amount reasonably determined
by such Agent or such Lender to be the excess, if any, of (i) the amount of interest that would have accrued on the principal
amount of such LIBOR Rate Loan had such event not occurred, at the LIBOR Rate that would have been applicable thereto, for the
period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure
to borrow, convert or continue, for the period that would have been the Interest Period therefor), minus (ii) the amount
of interest that would accrue on such principal amount for such period at the interest rate which such Agent or such Lender would
be offered were it to be offered, at the commencement of such period, Dollar deposits of a comparable amount and period in the
London interbank market. A certificate of an Agent or a Lender delivered to the Administrative Borrower setting forth any amount
or amounts that such Agent or such Lender is entitled to receive pursuant to this Section 2.08 shall be conclusive absent manifest
error.
Section
2.09 Taxes. (a) Any and all payments by or on account of any obligation of any Loan Party hereunder or under any other
Loan Document shall be made free and clear of and without deduction or withholding for any and all Taxes, except as required by
applicable law. If any applicable law (as determined in the good faith discretion of any Withholding Agent) requires the deduction
or withholding of any Taxes from or in respect of any such payment, (i) the applicable Withholding Agent shall make such deduction
or withholding, (ii) the applicable Withholding Agent shall pay the full amount deducted to the relevant Governmental Authority
in accordance with applicable law and (iii) if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party
shall be increased by the amount necessary such that after making all required deductions and withholdings (including deductions
and withholdings applicable to additional sums payable under this Section 2.09) the applicable Recipient receives the amount equal
to the sum it would have received had no such deduction or withholding been made.
(b)
In addition, each Loan Party shall pay to the relevant Governmental Authority in accordance with applicable law any Other Taxes,
or at the option of the Administrative Agent timely reimburse it for the payment of any Other Taxes by any Secured Party. Each
Loan Party shall deliver to each Secured Party official receipts in respect of any Taxes or Other Taxes payable hereunder promptly
after payment of such Taxes or Other Taxes.
(c)
The Loan Parties hereby jointly and severally indemnify and agree to hold each Secured Party harmless from and against Indemnified
Taxes and Other Taxes (including, without limitation, Indemnified Taxes and Other Taxes imposed on any amounts payable under this
Section 2.09) paid or payable by such Secured Party or required to be withheld or deducted from a payment to such Secured Party
and any expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly
or legally asserted. Such indemnification shall be paid within 10 days from the date on which any such Person makes written demand
therefore specifying in reasonable detail the nature and amount of such Indemnified Taxes or Other Taxes. A certificate as to
the amount of such payment or liability delivered to the Borrower by a Secured Party (with a copy to the Administrative Agent)
or by the Administrative Agent on its own behalf or on behalf of another Secured Party shall be conclusive absent manifest error.
(d)
(i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan
Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower
or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative
Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender,
if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable
law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent
to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding
anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other
than such documentation set forth in Section 2.09(d)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s
reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense
or would materially prejudice the legal or commercial position of such Lender.
(ii)
Without limiting the generality of the foregoing,
(A)
any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such
Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or
the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding
tax;
(B)
any Lender that is not a U.S. Person (a “Foreign Lender”) shall, to the extent it is legally entitled to do
so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be reasonably requested by the recipient)
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 reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:
(1)
in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect
to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or W-8BEN-E establishing an exemption from,
or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect
to any other applicable payments under any Loan Document, IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction
of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such
tax treaty;
(2)
executed copies of IRS Form W-8ECI;
(3)
in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal
Revenue Code, (x) a certificate substantially in the form of Exhibit 2.09(d)-1 hereto to the effect that such Foreign Lender is
not a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a “10 percent shareholder”
of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or a “controlled foreign corporation”
described in Section 881(c)(3)(C) of the Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and (y)
executed copies of IRS Form W-8BEN or W-8BEN-E; or
(4)
to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI,
IRS Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit 2.09(d)-2 or Exhibit 2.09(d)-3,
IRS Form W-9, or other certification documents from each beneficial owner, as applicable; provided that if the Foreign
Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest
exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit 2.09(d)-4 on
behalf of each such direct and indirect partner;
(C)
any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent
(in such number of copies as shall be reasonably requested by the recipient) 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 reasonable request of the Borrower or the Administrative
Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in
U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable
law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D)
if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such
Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b)
or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent
at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent
such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code)
and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the
Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied
with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for
purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
Each
Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect,
it shall update such form or certification or promptly notify the Administrative Agent in writing of its legal inability to do
so.
(e)
Each Lender shall indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable
to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified
Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure
to comply with the provisions of Section 12.07(i) relating to the maintenance of a Participant Register and (iii) any Excluded
Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan
Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such 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 any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative
Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by
the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph
(e).
(f)
If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which
it has been indemnified pursuant to this Section 2.09 (including by the payment of additional amounts pursuant to this Section
2.09), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made
under this Section 2.09 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes)
of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect
to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the
amount paid over pursuant to this paragraph (f) (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding
anything to the contrary in this paragraph (f), in no event will the indemnified party be required to pay any amount to an indemnifying
party pursuant to this paragraph (f) the payment of which would place the indemnified party in a less favorable net after-Tax
position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had
not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax
had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns
(or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(g)
The obligations of the Loan Parties under this Section 2.09 shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
Section
2.10 Increased Costs and Reduced Return. (a) If any Secured Party shall have determined that any Change in Law shall (i)
subject such Secured Party, or any Person controlling such Secured Party to any tax, duty or other charge with respect to this
Agreement or any Loan made by such Agent or such Lender, or change the basis of taxation of payments to such Secured Party or
any Person controlling such Secured Party of any amounts payable hereunder (except for taxes on the overall net income of such
Secured Party or any Person controlling such Secured Party), (ii) impose, modify or deem applicable any reserve, special deposit
or similar requirement against any Loan or against assets of or held by, or deposits with or for the account of, or credit extended
by, such Secured Party or any Person controlling such Secured Party or (iii) impose on such Secured Party or any Person controlling
such Secured Party any other condition regarding this Agreement or any Loan, and the result of any event referred to in clauses
(i), (ii) or (iii) above shall be to increase the cost to such Secured Party of making any Loan, or agreeing to make any Loan,
or to reduce any amount received or receivable by such Secured Party hereunder, then, upon demand by such Secured Party, the Borrowers
shall pay to such Secured Party such additional amounts as will compensate such Secured Party for such increased costs or reductions
in amount.
(b)
If any Secured Party shall have determined that any Change in Law either (i) affects or would affect the amount of capital required
or expected to be maintained by such Secured Party or any Person controlling such Secured Party, and such Secured Party determines
that the amount of such capital is increased as a direct or indirect consequence of any Loans made or maintained, such Secured
Party’s or such other controlling Person’s other obligations hereunder, or (ii) has or would have the effect of reducing
the rate of return on such Secured Party’s or such other controlling Person’s capital to a level below that which
such Secured Party or such controlling Person could have achieved but for such circumstances as a consequence of any Loans made
or maintained, or any agreement to make Loans, or such Secured Party’s or such other controlling Person’s other obligations
hereunder (in each case, taking into consideration, such Secured Party’s or such other controlling Person’s policies
with respect to capital adequacy), then, upon demand by such Secured Party, the Borrowers shall pay to such Secured Party from
time to time such additional amounts as will compensate such Secured Party for such cost of maintaining such increased capital
or such reduction in the rate of return on such Secured Party’s or such other controlling Person’s capital.
(c)
All amounts payable under this Section 2.10 shall bear interest from the date that is 10 days after the date of demand by any
Secured Party until payment in full to such Secured Party at the Reference Rate. A certificate of such Secured Party claiming
compensation under this Section 2.10, specifying the event herein above described and the nature of such event shall be submitted
by such Secured Party to the Administrative Borrower, setting forth the additional amount due and an explanation of the calculation
thereof, and such Secured Party’s reasons for invoking the provisions of this Section 2.10, and shall be final and conclusive
absent manifest error.
(d)
Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of this Section 2.10 shall
not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrowers shall not
be required to compensate a Lender pursuant to the foregoing provisions of this Section 2.10 for any increased costs incurred
or reductions suffered more than nine months prior to the date that such Lender notifies the Administrative Borrower of the Change
in Law giving rise to such increased costs or reductions and of such Lender’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 nine-month period referred
to above shall be extended to include the period of retroactive effect thereof).
(e)
The obligations of the Loan Parties under this Section 2.10 shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
Section
2.11 Changes in Law; Impracticability or Illegality.
(a)
The LIBOR Rate may be adjusted by the Administrative Agent with respect to any Lender on a prospective basis to take into account
any additional or increased costs to such Lender of maintaining or obtaining any eurodollar deposits or increased costs due to
changes in applicable law occurring subsequent to the commencement of the then applicable Interest Period, including changes in
tax laws (except changes of general applicability in corporate income tax laws) and changes in the reserve requirements imposed
by the Board of Governors of the Federal Reserve System (or any successor), excluding the Reserve Percentage, which additional
or increased costs would increase the cost of funding loans bearing interest at the LIBOR Rate. In any such event, the affected
Lender shall give the Administrative Borrower and the Administrative Agent written notice of such a determination and adjustment
and the Administrative Agent promptly shall transmit the notice to each other Lender and, upon its receipt of the notice from
the affected Lender, the Administrative Borrower may, by notice to such affected Lender (i) require such Lender to furnish to
the Administrative Borrower a statement setting forth the basis for adjusting such LIBOR Rate and the method for determining the
amount of such adjustment, or (ii) repay the LIBOR Rate Loans with respect to which such adjustment is made (together with any
amounts due under Section 2.09).
(b)
In the event that any change in market conditions or any law, regulation, treaty, or directive, or any change therein or in the
interpretation of application thereof, shall at any time after the date hereof, in the reasonable opinion of any Lender, make
it unlawful or impractical for such Lender to fund or maintain LIBOR Rate Loans or to continue such funding or maintaining, or
to determine or charge interest rates at the LIBOR Rate, such Lender shall give written notice of such changed circumstances to
the Administrative Borrower and the Administrative Agent, and the Administrative Agent promptly shall transmit the notice to each
other Lender and (i) in the case of any LIBOR Rate Loans of such Lender that are outstanding, the date specified in such Lender’s
notice shall be deemed to be the last day of the Interest Period of such LIBOR Rate Loans, and interest upon the LIBOR Rate Loans
of such Lender thereafter shall accrue interest at the rate then applicable to Reference Rate Loans of the same type hereunder,
and (ii) the Borrowers shall not be entitled to elect the LIBOR Option (including in any borrowing, conversion or continuation
then being requested) until such Lender determines that it would no longer be unlawful or impractical to do so.
(c)
The obligations of the Loan Parties under this Section 2.11 shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
ARTICLE
III
INTENTIONALLY OMITTED
ARTICLE
IV
APPLICATION OF PAYMENTS; DEFAULTING LENDERS;
JOINT AND SEVERAL LIABILITY OF BORROWERS
Section
4.01 Payments; Computations and Statements. (a) The Borrowers will make each payment under this Agreement not later than
2:00 p.m. (New York City time) on the day when due, in lawful money of the United States of America by wire transfer of immediately
available funds, to the Administrative Agent’s Account. All payments received by the Administrative Agent after 2:00 p.m.
(New York City time) on any Business Day will be deemed received on the next succeeding Business Day unless, in the Origination
Agent’s discretion, such payments are deemed received on the same Business Day of receipt thereof. All payments shall be
made by the Borrowers without set-off, counterclaim, recoupment, deduction or other defense to the Agents and the Lenders. Except
as provided in Section 2.02, after receipt, the Administrative Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal ratably to the Lenders in accordance with their Pro Rata Shares and like funds relating to
the payment of any other amount payable to any Lender to such Lender, in each case to be applied in accordance with the terms
of this Agreement. The Lenders and the Borrowers hereby authorize the Administrative Agent to, and the Administrative Agent will,
from time to time at the direction of the Origination Agent or the Required Lenders, charge the Loan Account of the Borrowers
with any amount due and payable by the Borrowers to the Agents and/or the Lenders under any Loan Document. Any amount charged
to the Loan Account of the Borrowers shall be deemed Obligations. Whenever any payment to be made under any such Loan Document
shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day and
such extension of time shall in such case be included in the computation of interest or fees, as the case may be. All computations
of fees shall be made by the Administrative Agent on the basis of a year of 360 days for the actual number of days. Each determination
by the Administrative Agent of an interest rate or fees hereunder shall be conclusive and binding for all purposes in the absence
of manifest error.
(b)
The Administrative Agent shall provide the Administrative Borrower, promptly at or around the end of each calendar month if there
is activity during such month or upon the reasonable written request of the Administrative Borrower, a summary statement (in the
form from time to time used by the Administrative Agent) of the opening and closing daily balances in the Loan Account of the
Borrowers during such month, the amounts and dates of all Loans made to the Borrowers during such month, the amounts and dates
of all payments on account of the Loans to the Borrowers during such month and the Loans to which such payments were applied,
the amount of interest accrued on the Loans to the Borrowers during such month, and the amount and nature of any charges to the
Loan Account made during such month on account of fees, commissions, expenses and other Obligations. All entries on any such statement
shall be presumed to be correct and, 30 days after the same is sent, shall be final and conclusive absent manifest error.
Section
4.02 Sharing of Payments. If any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise
of any right of set-off, or otherwise) on account of any Obligation in excess of its ratable share of payments on account of similar
obligations obtained by all the Lenders, such Lender shall forthwith purchase from the other Lenders such participations in such
similar obligations held by them as shall be necessary to cause such purchasing Lender to share the excess payment ratably with
each of them; provided, however, that (a) if all or any portion of such excess payment is thereafter recovered from
such purchasing Lender, such purchase from each Lender shall be rescinded and each Lender shall repay to the purchasing Lender
the purchase price to the extent of such recovery together with an amount equal to such Lender’s ratable share (according
to the proportion of (i) the amount of such Lender’s required repayment to (ii) the total amount so recovered from the purchasing
Lender) of any interest or other amount paid by the purchasing Lender in respect of the total amount so recovered and (b) the
provisions of this Section shall not be construed to apply to (i) any payment made by the Borrowers pursuant to and in accordance
with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender
and any payment of an amendment, consent or waiver fee to consenting Lenders pursuant to an effective amendment, consent or waiver
with respect to this Agreement), or (ii) any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans, other than to any Loan Party or any Subsidiary thereof (as to which the provisions of this
Section shall apply). The Borrowers agree that any Lender so purchasing a participation from another Lender pursuant to this Section
may, to the fullest extent permitted by law, exercise all of its rights (including the Lender’s right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of the Borrowers in the amount of such participation.
Section
4.03 Apportionment of Payments. Subject to Section 2.02 hereof and to any written agreement among the Agents and/or the
Lenders:
(a)
All payments of principal and interest in respect of outstanding Loans, all payments of fees (other than the fees set forth in
Section 2.06 hereof) and all other payments in respect of any other Obligations, shall be allocated by the Administrative Agent
among such of the Lenders as are entitled thereto, in proportion to their respective Pro Rata Shares or otherwise as provided
herein or, in respect of payments not made on account of Loans, as designated by the Person making payment when the payment is
made.
(b)
After the occurrence and during the continuance of an Event of Default, the Administrative Agent shall, upon the direction of
the Origination Agent or the Required Lenders, apply all payments in respect of any Obligations, including without limitation,
all proceeds of the Collateral, subject to the provisions of this Agreement, (i) first, ratably to pay the Obligations
in respect of any fees (other than the Specified Fee), expense reimbursements, indemnities and other amounts then due and payable
to the Agents until paid in full; (ii) second, to pay interest then due and payable in respect of the Origination Agent
Advances until paid in full; (iii) third, to pay principal of the Origination Agent Advances until paid in full; (iv) fourth,
ratably to pay the Obligations in respect of any fees (other than any Applicable Premium), expense reimbursements, indemnities
and other amounts then due and payable to the Lenders until paid in full; (v) fifth, ratably to pay interest then due and
payable in respect of the Loans until paid in full; (vi) sixth, ratably to pay principal of the Loans] until paid in full;
(vii) seventh, ratably to pay the Obligations in respect of any Applicable Premium then due and payable to the Lenders
until paid in full; (viii) eighth, to the ratable payment of all other Obligations (other than the Specified Fee) then
due and payable until paid in full; and (ix) ninth, to the ratable payment of the Specified Fee then due and payable
(c)
For purposes of Section 4.03(b) “paid in full” means payment in cash of all amounts owing under the Loan Documents
according to the terms thereof, including the Applicable Premium, loan fees, service fees, professional fees, interest (and specifically
including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense
reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(d)
In the event of a direct conflict between the priority provisions of this Section 4.03 and other provisions contained in any other
Loan Document, it is the intention of the parties hereto that both such priority provisions in such documents shall be read together
and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict
that cannot be resolved as aforesaid, the terms and provisions of this Section 4.03 shall control and govern.
Section
4.04 Defaulting Lenders. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a
Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable
law:
(a)
Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement
shall be restricted as set forth in Section 12.02.
(b)
The Administrative Agent shall not be obligated to transfer to such Defaulting Lender any payments made by any Borrower to the
Administrative Agent for such Defaulting Lender’s benefit, and, in the absence of such transfer to such Defaulting Lender,
the Administrative Agent shall transfer any such payments to each other non-Defaulting Lender ratably in accordance with their
Pro Rata Shares (without giving effect to the Pro Rata Shares of such Defaulting Lender) (but only to the extent that such Defaulting
Lender’s Loans were funded by the other Lenders) or, if so directed by the Administrative Borrower and if no Default or
Event of Default has occurred and is continuing (and to the extent such Defaulting Lender’s Loans were not funded by the
other Lenders), retain the same to be re-advanced to the Borrowers as if such Defaulting Lender had made such Loans to the Borrowers.
Subject to the foregoing, the Administrative Agent may hold and, in its discretion, re-lend to the Borrowers for the account of
such Defaulting Lender the amount of all such payments received and retained by the Administrative Agent for the account of such
Defaulting Lender.
(c)
Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement
and shall entitle the Borrowers to replace the Defaulting Lender with one or more substitute Lenders, and the Defaulting Lender
shall have no right to refuse to be replaced hereunder. Such notice to replace the Defaulting Lender shall specify an effective
date for such replacement, which date shall not be later than 15 Business Days after the date such notice is given. Prior to the
effective date of such replacement, the Defaulting Lender shall execute and deliver an Assignment and Acceptance, subject only
to the Defaulting Lender being repaid its share of the outstanding Obligations without any premium or penalty of any kind whatsoever.
If the Defaulting Lender shall refuse or fail to execute and deliver any such Assignment and Acceptance prior to the effective
date of such replacement, the Defaulting Lender shall be deemed to have executed and delivered such Assignment and Acceptance.
The replacement of any Defaulting Lender shall be made in accordance with the terms of Section 12.07.
(d)
The operation of this Section shall not be construed to increase or otherwise affect the Commitments of any Lender, to relieve
or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve
or excuse the performance by any Borrower of its duties and obligations hereunder to the Administrative Agent or to the Lenders
other than such Defaulting Lender.
(e)
This Section shall remain effective with respect to such Lender until either (i) the Obligations under this Agreement shall have
been declared or shall have become immediately due and payable or (ii) the non-Defaulting Lenders, the Agents, and the Borrowers
shall have waived such Defaulting Lender’s default in writing, and the Defaulting Lender makes its Pro Rata Share of the
applicable defaulted Loans and pays to the Agents all amounts owing by such Defaulting Lender in respect thereof; provided that
no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while
such Lender was a Defaulting Lender; provided, further, that except to the extent otherwise expressly agreed by the affected parties,
no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising
from such Lender’s having been a Defaulting Lender.
Section
4.05 Administrative Borrower; Joint and Several Liability of the Borrowers.
(a)
Each Borrower hereby irrevocably appoints Rhino as the borrowing agent and attorney-in-fact for the Borrowers (the “Administrative
Borrower”) which appointment shall remain in full force and effect unless and until the Agents shall have received prior
written notice signed by all of the Borrowers that such appointment has been revoked and that another Borrower has been appointed
Administrative Borrower. Each Borrower hereby irrevocably appoints and authorizes the Administrative Borrower (i) to provide to
the Agents and receive from the Agents all notices with respect to Loans obtained for the benefit of any Borrower and all other
notices and instructions under this Agreement and (ii) to take such action as the Administrative Borrower deems appropriate on
its behalf to obtain Loans and to exercise such other powers as are reasonably incidental thereto to carry out the purposes of
this Agreement. It is understood that the handling of the Loan Account and Collateral of the Borrowers in a combined fashion,
as more fully set forth herein, is done solely as an accommodation to the Borrowers in order to utilize the collective borrowing
powers of the Borrowers in the most efficient and economical manner and at their request, and that neither the Agents nor the
Lenders shall incur liability to the Borrowers as a result hereof. Each Borrower expects to derive benefit, directly or indirectly,
from the handling of the Loan Account and the Collateral in a combined fashion since the successful operation of each Borrower
is dependent on the continued successful performance of the integrated group.
(b)
Each Borrower hereby accepts joint and several liability hereunder and under the other Loan Documents in consideration of the
financial accommodations to be provided by the Agents and the Lenders under this Agreement and the other Loan Documents, for the
mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of the other Borrowers
to accept joint and several liability for the Obligations. Each of the Borrowers, jointly and severally, hereby irrevocably and
unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers,
with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising
under this Section 4.05), it being the intention of the parties hereto that all of the Obligations shall be the joint and several
obligations of each of the Borrowers without preferences or distinction among them. If and to the extent that any of the Borrowers
shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in
accordance with the terms thereof, then in each such event, the other Borrowers will make such payment with respect to, or perform,
such Obligation. Subject to the terms and conditions hereof, the Obligations of each of the Borrowers under the provisions of
this Section 4.05 constitute the absolute and unconditional, full recourse Obligations of each of the Borrowers, enforceable against
each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of
this Agreement, the other Loan Documents or any other circumstances whatsoever.
(c)
The provisions of this Section 4.05 are made for the benefit of the Agents, the Lenders and their successors and assigns, and
may be enforced by them from time to time against any or all of the Borrowers as often as occasion therefor may arise and without
requirement on the part of the Agents, the Lenders or such successors or assigns first to marshal any of its or their claims or
to exercise any of its or their rights against any of the other Borrowers or to exhaust any remedies available to it or them against
any of the other Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder
or to elect any other remedy. The provisions of this Section 4.05 shall remain in effect until all of the Obligations shall have
been paid in full or otherwise fully satisfied.
(d)
Each of the Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other
Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by
it to the Agents or the Lenders with respect to any of the Obligations or any Collateral, until such time as all of the Obligations
have been paid in full in cash. Any claim which any Borrower may have against any other Borrower with respect to any payments
to the Agents or the Lenders hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right
of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in
full in cash of the Obligations.
ARTICLE
V
CONDITIONS TO LOANS
Section
5.01 Conditions Precedent to Effectiveness. This Agreement shall become effective as of the Business Day (the “Effective
Date”) when each of the following conditions precedent shall have been satisfied in a manner satisfactory to the Agents:
(a)
Payment of Fees, Etc. The Borrowers shall have paid on or before the Effective Date all fees, costs, expenses and taxes
then payable pursuant to Section 2.06 and Section 12.04.
(b)
Representations and Warranties; No Event of Default. The following statements shall be true and correct: (i) the representations
and warranties contained in Article VI and in each other Loan Document, certificate or other writing delivered to any Secured
Party pursuant hereto or thereto on or prior to the Effective Date are true and correct on and as of the Effective Date as though
made on and as of such date, except to the extent that any such representation or warranty expressly relates solely to an earlier
date (in which case such representation or warranty shall be true and correct on and as of such earlier date) and (ii) no Default
or Event of Default shall have occurred and be continuing on the Effective Date or would result from this Agreement or the other
Loan Documents becoming effective in accordance with its or their respective terms.
(c)
Legality. The making of the initial Loans shall not contravene any law, rule or regulation applicable to any Secured Party.
(d)
Delivery of Documents. The Agents shall have received on or before the Effective Date the following, each in form and substance
satisfactory to the Agents and, unless indicated otherwise, dated the Effective Date and, if applicable, duly executed by the
Persons party thereto:
(i)
this Agreement;
(ii)
a Security Agreement, together with the original stock certificates representing all of the Equity Interests constituting certificated
Collateral and all promissory notes required to be pledged thereunder, accompanied by undated stock powers executed in blank and
other proper instruments of transfer;
(iii)
a UCC Filing Authorization Letter, together with evidence satisfactory to the Origination Agent of the filing of appropriate financing
statements on Form UCC-1 in such office or offices as may be necessary or, in the opinion of the Origination Agent, desirable
to perfect the security interests purported to be created by each Security Agreement and each Mortgage;
(iv)
the results of searches for any effective UCC financing statements, tax Liens or judgment Liens filed against any Loan Party or
its property, which results shall not show any such Liens (other than Permitted Liens acceptable to the Origination Agent);
(v)
a Perfection Certificate;
(vi)
the Disbursement Letter;
(vii)
the Fee Letter;
(viii)
the Intercompany Subordination Agreement;
(ix)
a certificate of an Authorized Officer of each Loan Party, certifying (A) as to copies of the Governing Documents of such Loan
Party, together with all amendments thereto (including, without limitation, a true and complete copy of the charter, certificate
of formation, certificate of limited partnership or other publicly filed organizational document of each Loan Party certified
as of a recent date not more than 30 days prior to the Effective Date by an appropriate official of the jurisdiction of organization
of such Loan Party which shall set forth the same complete name of such Loan Party as is set forth herein and the organizational
number of such Loan Party, if an organizational number is issued in such jurisdiction), (B) as to a copy of the resolutions or
written consents of such Loan Party authorizing (1) the borrowings hereunder and the transactions contemplated by the Loan Documents
to which such Loan Party is or will be a party, and (2) the execution, delivery and performance by such Loan Party of each Loan
Document to which such Loan Party is or will be a party and the execution and delivery of the other documents to be delivered
by such Person in connection herewith and therewith, (C) the names and true signatures of the representatives of such Loan Party
authorized to sign each Loan Document (in the case of a Borrower, including, without limitation, Notices of Borrowing, LIBOR Notice
and all other notices under this Agreement and the other Loan Documents) to which such Loan Party is or will be a party and the
other documents to be executed and delivered by such Loan Party in connection herewith and therewith, together with evidence of
the incumbency of such authorized officers and (D) as to the matters set forth in Section 5.01(b);
(x)
a certificate of the chief financial officer of the Parent (A) attaching a copy of the Financial Statements and the Projections
described in Section 6.01(g)(ii) hereof and certifying as to the compliance with the representations and warranties set forth
in Section 6.01(g)(i) and Section 6.01(aa)(ii) and (B) certifying that after giving effect to all Loans and payments to be made
on the Effective Date, (1) Qualified Cash of the Loan Parties is not less than $12,000,000 and (2) all liabilities of the Loan
Parties are current;
(xi)
a certificate of the chief financial officer of the Parent, certifying as to the solvency of the Parent and its Subsidiaries,
taken as a whole (after giving effect to the Loans made on the Effective Date);
(xii)
a certificate of an Authorized Officer of the Administrative Borrower certifying that (A) the attached schedule of the Material
Contracts as in effect on the Effective Date is a true, complete and correct schedule of the Material Contracts that were delivered
to the Origination Agent prior to the Effective Date and (B) such Material Contracts set forth on such schedule remain in full
force and effect and that none of the Loan Parties has breached or defaulted in any of its obligations under such agreements;
(xiii)
a certificate of the appropriate official(s) of the jurisdiction of organization and, except to the extent such failure to be
so qualified could not reasonably be expected to have a Material Adverse Effect, each jurisdiction of foreign qualification of
each Loan Party certifying as of a recent date not more than 30 days prior to the Effective Date as to the subsistence in good
standing of, and the payment of taxes by, such Loan Party in such jurisdictions;
(xiv)
an opinion of Frost Brown Todd LLC, counsel to the Loan Parties, as to such matters as the Origination Agent may reasonably request;
(xv)
evidence of the insurance coverage required by Section 7.01 and the terms of each Security Agreement and each Mortgage and such
other insurance coverage with respect to the business and operations of the Loan Parties as the Origination Agent may reasonably
request, in each case, where requested by the Origination Agent, with such endorsements as to the named insureds or loss payees
thereunder as the Origination Agent may request and providing that such policy may be terminated or canceled (by the insurer or
the insured thereunder) only upon 30 days’ prior written notice to the Origination Agent and each such named insured or
loss payee, together with evidence of the payment of all premiums due in respect thereof for such period as the Origination Agent
may request;
(xvi)
evidence of the payment in full of all Indebtedness under the Existing Credit Facility, together with (A) a termination and release
agreement with respect to the Existing Credit Facility and all related documents, duly executed by the Loan Parties and the Existing
Lenders, (B) a satisfaction of mortgage for each mortgage filed by the Existing Lender on each Facility, (C) a termination of
security interest in Intellectual Property for each assignment for security recorded by the Existing Lenders at the United States
Patent and Trademark Office or the United States Copyright Office and covering any intellectual property of the Loan Parties,
and (D) UCC-3 termination statements for all UCC-1 financing statements filed by the Existing Lenders and covering any portion
of the Collateral;
(xvii)
all Control Agreements that, in the reasonable judgment of the Agents, are required for the Loan Parties to comply with the Loan
Documents as of the Effective Date, each duly executed by, in addition to the applicable Loan Party, the applicable financial
institution;
(xviii)
evidence satisfactory to the Agents that a Process
Agent has been properly appointed by each Loan Party in accordance with Section 12.10(b); and
(xix)
such other agreements, instruments, approvals, opinions and other documents, each satisfactory to the Agents in form and substance,
as any Agent may reasonably request (including, without limitation, IRS Form W-9s or such other tax form as may be applicable,
tax identification numbers and addresses).
(e)
Material Adverse Effect. The Origination Agent shall have determined, in its sole judgment, that no event or development
shall have occurred since December 31, 2016 which could reasonably be expected to have a Material Adverse Effect.
(f)
Approvals. All consents, authorizations and approvals of, and filings and registrations with, and all other actions in
respect of, any Governmental Authority or other Person required in connection with the making of the Loans or the conduct of the
Loan Parties’ business shall have been obtained and shall be in full force and effect.
(g)
Proceedings; Receipt of Documents. All proceedings in connection with the making of the initial Loans and the other transactions
contemplated by this Agreement and the other Loan Documents, and all documents incidental hereto and thereto, shall be satisfactory
to the Origination Agent and its counsel, and the Origination Agent and such counsel shall have received all such information
and such counterpart originals or certified or other copies of such documents as the Origination Agent or such counsel may reasonably
request.
(h)
Management Reference Checks. The Origination Agent shall have received satisfactory reference checks for, and shall have
had an opportunity to meet with, key management of each Loan Party.
(i)
Litigation. Except as set forth on Schedule 6.01(f), there shall exist no claim, action, suit, investigation, litigation
or proceeding (including, without limitation, shareholder or derivative litigation) pending or threatened in any court or before
any arbitrator or governmental authority which relates to the Loan or which, in the reasonable opinion of the Origination Agent,
is reasonably likely to be adversely determined, and that, if adversely determined, would reasonably be expected to have a Material
Adverse Effect.
(j)
Notices. (i) The Administrative Agent shall have received a Notice of Borrowing pursuant to Section 2.02 hereof and (ii)
the Origination Agent shall have received a Collateral Coverage Amount Certificate.
Section
5.02 Conditions Precedent to Delayed Draw Loans. The obligation of any Agent or any Lender to make any Loan pursuant to
a Delayed Draw Term Loan Commitment after the Effective Date is subject to the fulfillment, in a manner satisfactory to the Origination
Agent, of each of the following conditions precedent:
(a)
Payment of Fees, Etc. The Borrowers shall have paid all fees, costs, expenses and taxes then payable by the Borrowers pursuant
to this Agreement and the other Loan Documents, including, without limitation, Section 2.06 and Section 12.04 hereof.
(b)
Representations and Warranties; No Event of Default. The following statements shall be true and correct, and the submission
by the Administrative Borrower to the Administrative Agent of a Notice of Borrowing with respect to each such Loan, and the Borrowers’
acceptance of the proceeds of such Loan that: (i) the representations and warranties contained in Article VI and in each other
Loan Document, certificate or other writing delivered to any Secured Party pursuant hereto or thereto on or prior to the date
of such Loan are true and correct in all material respects (except that such materiality qualifier shall not be applicable to
any representations or warranties that already are qualified or modified as to materiality or “Material Adverse Effect”
in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification)
on and as of such date as though made on and as of such date, except to the extent that any such representation or warranty expressly
relates solely to an earlier date (in which case such representation or warranty shall be true and correct in all material respects
(except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified
or modified as to materiality or “Material Adverse Effect” in the text thereof, which representations and warranties
shall be true and correct in all respects subject to such qualification) on and as of such earlier date), (ii) at the time of
and after giving effect to the making of such Loan and the application of the proceeds thereof, no Default or Event of Default
has occurred and is continuing or would result from the making of the Loan to be made, on such date and (iii) the conditions set
forth in this Section 5.02 have been satisfied as of the date of such request.
(c)
Legality. The making of such Loan shall not contravene any law, rule or regulation applicable to any Secured Party.
(d)
Notices. (i) The Administrative Agent shall have received a Notice of Borrowing pursuant to Section 2.02 hereof, (ii) the
Origination Agent shall have received a Collateral Coverage Amount Certificate and (iii) the Agents shall have received a certificate
of an Authorized Officer of each Loan Party certifying as to the matters set forth in Section 5.02(b).
(e)
Proceedings; Receipt of Documents. All proceedings in connection with the making of such Loan and the other transactions
contemplated by this Agreement and the other Loan Documents, and all documents incidental hereto and thereto, shall be satisfactory
to the Agents and their counsel, and the Agents and such counsel shall have received such other agreements, instruments, approvals,
opinions and other documents, each in form and substance satisfactory to the Agents, as any Agent may reasonably request.
(f)
Collateral Coverage Amount. After giving effect to the proposed Term Loan, the Collateral Coverage Amount shall not be
less than the aggregate outstanding principal amount of the Terms Loans.
(g)
Delivery of Documents. The Agents shall have received such other ancillary and related agreements to the Loan Documents
and opinions, each in form and substance satisfactory to the Origination Agent, as the Origination Agent may reasonably request.
(h)
Origination Agent Consent. After the first anniversary of the Effective Date, the Origination Agent shall have provided
its prior written consent to the making of any such Term Loan.
(i)
Series A Consent. From and after the date an aggregate amount of $50,000,000 of Indebtedness has been incurred pursuant
to this Agreement, the Origination Agent shall have received evidence, in form and substance satisfactory to the Origination Agent,
that a majority of the Outstanding Series A Preferred Units (as defined in the Partnership Agreement) have consented to the incurrence
of Indebtedness by the Loan Parties pursuant to this Agreement in excess of $50,000,000.
(j)
Additional Conditions for Term Loans after the Effective Date. With respect to a request for a Term Loan pursuant to a
Delayed Draw Term Loan Commitment after the Effective Date, (x) the proceeds of such Term Loan may only be used to fund all or
a portion of the cash consideration for a Permitted Acquisition and the related transaction costs and the fees and expenses due
and payable in connection with the making of such Term Loan and (y) the Origination Agent shall have received all of the acquisition
documents related to such Permitted Acquisition and provided its prior written consent to the consummation of such Acquisition.
ARTICLE
VI
REPRESENTATIONS AND WARRANTIES
Section
6.01 Representations and Warranties. Each Loan Party hereby represents and warrants to the Secured Parties as follows:
(a)
Organization, Good Standing, Etc. Each Loan Party (i) is a corporation, limited liability company or limited partnership
duly organized, validly existing and in good standing under the laws of the state or jurisdiction of its organization, (ii) has
all requisite power and authority to conduct its business as now conducted and as presently contemplated and, in the case of the
Borrowers, to make the borrowings hereunder, and to execute and deliver each Loan Document to which it is a party, and to consummate
the transactions contemplated thereby, and (iii) is duly qualified to do business and is in good standing in each jurisdiction
in which the character of the properties owned or leased by it or in which the transaction of its business makes such qualification
necessary, except (solely for the purposes of this subclause (iii)) where the failure to be so qualified and in good standing
could reasonably be expected to have a Material Adverse Effect.
(b)
Authorization, Etc. The execution, delivery and performance by each Loan Party of each Loan Document to which it is or
will be a party, (i) have been duly authorized by all necessary action, (ii) do not and will not contravene (A) any of its Governing
Documents, (B) any applicable material Requirement of Law or (C) any material Contractual Obligation binding on or otherwise affecting
it or any of its properties, (iii) do not and will not result in or require the creation of any Lien (other than pursuant to any
Loan Document) upon or with respect to any of its properties, and (iv) do not and will not result in any default, noncompliance,
suspension, revocation, impairment, forfeiture or nonrenewal of any permit, license, authorization or approval applicable to its
operations or any of its properties, except, in the case of clause (iv), to the extent where such contravention, default, noncompliance,
suspension, revocation, impairment, forfeiture or nonrenewal could not reasonably be expected to have a Material Adverse Effect.
(c)
Governmental Approvals. No authorization or approval or other action by, and no notice to or filing with, any Governmental
Authority is required in connection with the due execution, delivery and performance by any Loan Party of any Loan Document to
which it is or will be a party other than filings and recordings with respect to Collateral to be made, or otherwise delivered
to the Collateral Agent for filing or recordation, on the Effective Date.
(d)
Enforceability of Loan Documents. This Agreement is, and each other Loan Document to which any Loan Party is or will be
a party, when delivered hereunder, will be, a legal, valid and binding obligation of such Person, enforceable against such Person
in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity.
(e)
Capitalization. On the Effective Date, after giving effect to the transactions contemplated hereby to occur on the Effective
Date, the authorized Equity Interests of the Parent and each of its Subsidiaries and the issued and outstanding Equity Interests
of the Parent and each of its Subsidiaries are as set forth on Schedule 6.01(e). All of the issued and outstanding shares of Equity
Interests of the Parent and each of its Subsidiaries have been validly issued and are fully paid and nonassessable, and the holders
thereof are not entitled to any preemptive, first refusal or other similar rights. All Equity Interests of such Subsidiaries of
the Parent are owned by the Parent free and clear of all Liens (other than Permitted Specified Liens). Except as described on
Schedule 6.01(e), there are no outstanding debt or equity securities of the Parent or any of its Subsidiaries and no outstanding
obligations of the Parent or any of its Subsidiaries convertible into or exchangeable for, or warrants, options or other rights
for the purchase or acquisition from the Parent or any of its Subsidiaries, or other obligations of the Parent or any of its Subsidiaries
to issue, directly or indirectly, any shares of Equity Interests of the Parent or any of its Subsidiaries.
(f)
Litigation. Except as set forth in Schedule 6.01(f), there is no pending or, to the best knowledge of any Loan Party, threatened
action, suit or proceeding affecting any Loan Party or any of its properties before any court or other Governmental Authority
or any arbitrator that (i) if adversely determined, could reasonably be expected to have a Material Adverse Effect or (ii) relates
to this Agreement or any other Loan Document or any transaction contemplated hereby or thereby.
(g)
Financial Statements.
(i)
The Financial Statements, copies of which have been delivered to each Agent and each Lender, fairly present the consolidated financial
condition of the Parent and its Subsidiaries as at the respective dates thereof and the consolidated results of operations of
the Parent and its Subsidiaries for the fiscal periods ended on such respective dates, all in accordance with GAAP. All material
indebtedness and other liabilities (including, without limitation, Indebtedness, liabilities for taxes, long-term leases and other
unusual forward or long-term commitments), direct or contingent, of the Parent and its Subsidiaries are set forth in the Financial
Statements. Since December 31, 2016 no event or development has occurred that has had or could reasonably be expected to have
a Material Adverse Effect.
(ii)
The Parent has heretofore furnished to each Agent and each Lender (A) projected monthly balance sheets, income statements and
statements of cash flows of the Parent and its Subsidiaries for the period from January 1, 2018, through December 31, 2018, and
(B) projected annual balance sheets, income statements and statements of cash flows of the Parent and its Subsidiaries for the
Fiscal Years ending in 2018 through 2020, which projected financial statements shall be updated from time to time pursuant to
Section 7.01(a)(vii).
(h)
Compliance with Law, Etc. No Loan Party or any of its Subsidiaries is in violation of (i) any of its Governing Documents,
(ii) any material Requirement of Law, or (iii) any material term of any material Contractual Obligation (including, without limitation,
any Material Contract) binding on or otherwise affecting it or any of its properties, and no default or event of default has occurred
and is continuing thereunder.
(i)
ERISA. Except as set forth on Schedule 6.01(i), (i) each Employee Plan is in substantial compliance with ERISA and the
Internal Revenue Code, (ii) no Termination Event has occurred nor is reasonably expected to occur with respect to any Employee
Plan, (iii) the most recent annual report (Form 5500 Series) with respect to each Employee Plan, including any required Schedule
B (Actuarial Information) thereto, copies of which have been filed with the Internal Revenue Service and delivered to the Agents,
is complete and correct and fairly presents the funding status of such Employee Plan, and since the date of such report there
has been no material adverse change in such funding status, (iv) copies of each agreement entered into with the PBGC, the U.S.
Department of Labor or the Internal Revenue Service with respect to any Employee Plan have been delivered to the Agents, (v) no
Employee Plan had an accumulated or waived funding deficiency or permitted decrease which would create a deficiency in its funding
standard account or has applied for an extension of any amortization period within the meaning of Section 412 of the Internal
Revenue Code at any time during the previous 60 months, and (vi) no Lien imposed under the Internal Revenue Code or ERISA exists
or is likely to arise on account of any Employee Plan within the meaning of Section 412 of the Internal Revenue Code. Except as
set forth on Schedule 6.01(i), no Loan Party or any of its ERISA Affiliates has incurred any withdrawal liability under ERISA
with respect to any Multiemployer Plan, or is aware of any facts indicating that it or any of its ERISA Affiliates may in the
future incur any such withdrawal liability. No Loan Party or any of its ERISA Affiliates nor any fiduciary of any Employee Plan
has (i) engaged in a nonexempt prohibited transaction described in Sections 406 of ERISA or 4975 of the Internal Revenue Code,
(ii) failed to pay any required installment or other payment required under Section 412 of the Internal Revenue Code on or before
the due date for such required installment or payment, (iii) engaged in a transaction within the meaning of Section 4069 of ERISA
or (iv) incurred any liability to the PBGC which remains outstanding other than the payment of premiums, and there are no premium
payments which have become due which are unpaid. There are no pending or, to the best knowledge of any Loan Party, threatened
claims, actions, proceedings or lawsuits (other than claims for benefits in the normal course) asserted or instituted against
(i) any Employee Plan or its assets, (ii) any fiduciary with respect to any Employee Plan, or (iii) any Loan Party or any of its
ERISA Affiliates with respect to any Employee Plan. Except as required by Section 4980B of the Internal Revenue Code, no Loan
Party or any of its ERISA Affiliates maintains an employee welfare benefit plan (as defined in Section 3(1) of ERISA) which provides
health or welfare benefits (through the purchase of insurance or otherwise) for any retired or former employee of any Loan Party
or any of its ERISA Affiliates or coverage after a participant’s termination of employment.
(j)
Taxes, Etc. (i) All Tax returns and other reports required by applicable Requirements of Law to be filed by any Loan Party
have been timely filed and (ii) all Taxes imposed upon any Loan Party or any property of any Loan Party which have become due
and payable on or prior to the date hereof have been paid, except (A) unpaid Taxes in an aggregate amount at any one time not
in excess of $250,000, and (B) Taxes contested in good faith by proper proceedings which stay the imposition of any Lien resulting
from the non-payment thereof and with respect to which adequate reserves have been set aside for the payment thereof on the Financial
Statements in accordance with GAAP.
(k)
Regulations T, U and X. No Loan Party is or will be engaged in the business of extending credit for the purpose of purchasing
or carrying margin stock (within the meaning of Regulation T, U or X), and no proceeds of any Loan will be used to purchase or
carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock or for any purpose
that violates, or is inconsistent with, the provisions of Regulation T, U and X.
(l)
Nature of Business.
(i)
No Loan Party is engaged in any business other than as set forth on Schedule 6.01(l).
(ii)
The Parent does not have any material liabilities (other than liabilities arising under the Loan Documents), own any material
assets (other than the Equity Interests of its Subsidiaries) or engage in any operations or business (other than the ownership
of its Subsidiaries).
(m)
Adverse Agreements, Etc. No Loan Party or any of its Subsidiaries is a party to any Contractual Obligation or subject to
any restriction or limitation in any Governing Document or any judgment, order, regulation, ruling or other requirement of a court
or other Governmental Authority, which (either individually or in the aggregate) has, or in the future could reasonably be expected
(either individually or in the aggregate) to have, a Material Adverse Effect.
(n)
Permits, Etc. Each Loan Party has, and is in compliance with, all permits, licenses, authorizations, approvals, entitlements
and accreditations required for such Person lawfully to own, lease, manage or operate, or to acquire, each business and Facility
currently owned, leased, managed or operated, or to be acquired, by such Person, except to the extent the failure to have or be
in compliance therewith could not reasonably be expected to have a Material Adverse Effect. No condition exists or event has occurred
which, in itself or with the giving of notice or lapse of time or both, would result in the suspension, revocation, impairment,
forfeiture or non-renewal of any such permit, license, authorization, approval, entitlement or accreditation, and there is no
claim that any thereof is not in full force and effect.
(o)
Properties.
(i)
Each Loan Party has good and marketable title to, valid leasehold interests in, or valid licenses to use, all property and assets
material to its business, including, without limitation, coal and any other compound or mineral, free and clear of all Liens,
except Permitted Liens. All of the machinery, equipment, vehicles and other tangible personal property owned or leased by the
Loan Parties that is necessary to conduct their business as it is now conducted have been maintained in accordance with normal
mining industry practice and are in good working order, in each case, ordinary wear and tear excepted consistent with the mining
industry.
(ii)
Schedule 6.01(o)(1) sets forth a complete and accurate list, with such information and in a form acceptable to the Origination
Agent, of all of the Real Property owned or leased by the Loan Parties as of the Effective Date. As of the Effective Date, each
Loan Party has valid leasehold interests in the Leases described on Schedule 6.01(o) to which it is a party. True, complete and
correct copies of each such Lease have been made available to the Origination Agent prior to the Effective Date. Each Lease set
forth on Schedule 6.01(o)(2) (each, a “Material Lease”) is valid and enforceable in accordance with its terms
in all material respects and is in full force and effect. No consent or approval of any landlord or other third party in connection
with any such Material Lease is necessary for any Loan Party to enter into and execute the Loan Documents to which it is a party,
except as set forth on Schedule 6.01(o)(2). Except as set forth on Schedule 6.01(o)(2), to the best knowledge of any Loan Party,
no other party to any such Material Lease is in default of its obligations thereunder, and no Loan Party (or any other party to
any such Material Lease) has at any time delivered or received any notice of default which remains uncured under any such Material
Lease and, as of the Effective Date, no event has occurred which, with the giving of notice or the passage of time or both, would
constitute a default under any such Material Lease. No Person has made, and no Person is entitled to make, any adverse claims
against any properties or assets material to any Loan Party’s business, including (without limitation) the Material Leases
and any Loan Party’s rights thereunder. Each Loan Party has made all payments required to be made under each Material Lease
to which it is a party or under applicable law, including (without limitation) all advance royalty payments material to any Loan
Party’s business.
(p)
Employee and Labor Matters. There is (i) no unfair labor practice complaint pending or, to the best knowledge of any Loan
Party, threatened against any Loan Party before any Governmental Authority and no grievance or arbitration proceeding pending
or threatened against any Loan Party which arises out of or under any collective bargaining agreement, (ii) no strike, labor dispute,
slowdown, stoppage or similar action or grievance pending or threatened against any Loan Party or (iii) to the best knowledge
of each Loan Party, no union representation question existing with respect to the employees of any Loan Party and no union organizing
activity taking place with respect to any of the employees of any Loan Party. No Loan Party or any of its ERISA Affiliates has
incurred any liability or obligation under the Worker Adjustment and Retraining Notification Act (“WARN”) or
similar state law, which remains unpaid or unsatisfied. The hours worked and payments made to employees of any Loan Party have
not been in violation of the Fair Labor Standards Act or any other applicable legal requirements. All material payments due from
any Loan Party on account of wages and employee health and welfare insurance and other benefits have been paid or accrued as a
liability on the books of such Loan Party.
(q)
Environmental Matters. Except as set forth on Schedule 6.01(q), (i) no Loan Party or any of its Subsidiaries is in violation
of any Environmental Law, (ii) each Loan Party and its Subsidiaries has, and is in compliance with, all Environmental Permits
for its respective operations and businesses, except to the extent any failure to have or be in compliance therewith could not
reasonably be expected to result in a material Environmental Claim or Environmental Liability); (iii) there has been no Release
of Hazardous Materials at any properties currently or formerly owned, leased or operated by any Loan Party, its Subsidiaries or
a respective predecessor in interest or at any disposal or treatment facility which received Hazardous Materials generated by
any Loan Party, its Subsidiaries or any respective predecessor in interest, which in any case of the foregoing could reasonably
be expected to result in a material Environmental Claim or Environmental Liability); (iv) there are no pending or threatened Environmental
Claims against, or Environmental Liability of, any Loan Party, its Subsidiaries or any respective predecessor in interest that
could reasonably be expected to result in any adverse consequence to any Loan Party (other than immaterial consequences) or any
Secured Party); (v) neither any Loan Party nor any of its Subsidiaries is performing or responsible for any Remedial Action that
could reasonably be expected to result in any material Environmental Liability); (vi) the Loan Parties have made available to
the Collateral Agent and Lenders true and complete copies of all material environmental reports, audits, and investigations in
the possession or control of any Loan Party or any of its Subsidiaries with respect to the operations and business of the Loan
Parties and its Subsidiaries; (vii) there are no underground or aboveground storage tanks, surface impoundments, landfills, septic
tanks, pits, sumps or lagoons located on, at or under any Facility or any property currently or formerly owned, leased or operated
by a Loan Party, its Subsidiaries or any respective predecessor which could reasonably be expected to result in a material Environmental
Claim against or Environmental Liability of a Loan Party or its Subsidiaries; (viii) none of the Facilities nor any other property
currently or formerly owned, leased or operated by any Loan Party, its Subsidiaries or any respective predecessor in interest,
is, or to the knowledge of any Loan Party or its Subsidiaries is proposed to be, listed on the National Priorities List (NPL)
or on the Comprehensive Environmental Response, Compensation, and Liability Information System (CERCLIS), or any analogous foreign,
state or local list; (ix) to the knowledge of any Loan Party or its Subsidiaries, neither the Facilities nor any property currently
or formerly owned, leased or operated by a Loan Party, its Subsidiaries or any respective predecessor in interest has been used
as a treatment, storage or disposal site for any Hazardous Material; (x) no Capital Expenditures-Maintenance are required to be
made in respect as a condition of continued compliance with any Environmental Laws or Environmental Permit; and (xi) no Environmental
Lien has attached to, or to the knowledge of any Loan Party or its Subsidiaries, is threatened against any of the Collateral.
(r)
Insurance. Each Loan Party maintains all insurance required by Section 7.01(h). Schedule 6.01(r) sets forth a list of all
such insurance maintained by or for the benefit of each Loan Party on the Effective Date.
(s)
Use of Proceeds. The proceeds of the Loans shall be used to (a) refinance the Existing Credit Facility, (b) pay fees and
expenses in connection with the transactions contemplated hereby and (c) fund working capital of the Borrowers. The proceeds of
any Term Loan made after the Effective Date may only be used to fund a Permitted Acquisition and related transaction costs and
the fees and expenses due and payable in connection with the making of such Term Loan.
(t)
Solvency. After giving effect to the transactions contemplated by this Agreement and before and after giving effect to
each Loan, each Loan Party is, and the Loan Parties on a consolidated basis are, Solvent. No transfer of property is being made
by any Loan Party and no obligation is being incurred by any Loan Party in connection with the transactions contemplated by this
Agreement or the other Loan Documents with the intent to hinder, delay, or defraud either present or future creditors of such
Loan Party.
(u)
Intellectual Property. Except as set forth on Schedule 6.01(u), each Loan Party owns or licenses or otherwise has the right
to use all Intellectual Property rights that are necessary for the operation of its business, without infringement upon or conflict
with the rights of any other Person with respect thereto, except for such infringements and conflicts which, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse Effect. Set forth on Schedule 6.01(u) is a complete
and accurate list as of the Effective Date of (i) each item of Registered Intellectual Property owned by each Loan Party; and
(ii) each material work of authorship owned by each Loan party and which is not Registered Intellectual Property. No trademark
or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to
be employed, by any Loan Party infringes upon or conflicts with any rights owned by any other Person, and no claim or litigation
regarding any of the foregoing is pending or threatened, except for such infringements and conflicts which could not reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect. To the knowledge of each Loan Party, no patent,
invention, device, application, principle or any statute, law, rule, regulation, standard or code pertaining to Intellectual Property
is pending or proposed, which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(v)
Material Contracts. Set forth on Schedule 6.01(v) is a complete and accurate list as of the Effective Date of all Material
Contracts of each Loan Party, showing the parties and subject matter thereof and material amendments and modifications thereto.
Each such Material Contract (i) is in full force and effect and is binding upon and enforceable against each Loan Party that is
a party thereto and, to the best knowledge of such Loan Party, all other parties thereto in accordance with its terms, (ii) has
not been otherwise amended or modified in any material respect, and (iii) is not in default due to the action of any Loan Party
or, to the best knowledge of any Loan Party, any other party thereto.
(w)
Investment Company Act. None of the Loan Parties is (i) an “investment company” or an “affiliated person”
or “promoter” of, or “principal underwriter” of or for, an “investment company”, as such terms
are defined in the Investment Company Act of 1940, as amended, or (ii) subject to regulation under any Requirement of Law that
limits in any respect its ability to incur Indebtedness or which may otherwise render all or a portion of the Obligations unenforceable.
(x)
Customers and Suppliers. Except for discussions and negotiations in the ordinary course of business, there exists no actual
or threatened termination, cancellation or limitation of, or modification to or change in, the business relationship between (i)
any Loan Party, on the one hand, and any customer or any group thereof, on the other hand, whose agreements with any Loan Party
are individually or in the aggregate material to the business or operations of such Loan Party, or (ii) any Loan Party, on the
one hand, and any supplier or any group thereof, on the other hand, whose agreements with any Loan Party are individually or in
the aggregate material to the business or operations of such Loan Party; and there exists no present state of facts or circumstances
that could give rise to or result in any such termination, cancellation, limitation, modification or change.
(y)
Anti-Money Laundering and Anti-Terrorism Laws.
(i)
None of the Loan Parties, nor any Affiliate of any of the Loan Parties, has violated or is in violation of any of the Anti-Money
Laundering and Anti-Terrorism Laws or has engaged in or conspired to engage in any transaction that evades or avoids, or has the
purpose of evading or avoiding, or attempts to violate, any of the Anti-Money Laundering and Anti-Terrorism Laws.
(ii)
None of the Loan Parties, nor any Affiliate of any of the Loan Parties, nor any officer, director or principal shareholder or
owner of any of the Loan Parties, nor any of the Loan Parties’ respective agents acting or benefiting in any capacity in
connection with the Loans or other transactions hereunder, is a Blocked Person.
(iii)
None of the Loan Parties, nor any of their agents acting in any capacity in connection with the Loans or other transactions hereunder,
(A) conducts any business with or for the benefit of any Blocked Person or engages in making or receiving any contribution of
funds, goods or services to, from or for the benefit of any Blocked Person, or (B) deals in, or otherwise engages in any transaction
relating to, any property or interests in property blocked or subject to blocking pursuant to any OFAC Sanctions Programs.
(z)
Anti-Bribery and Anti-Corruption Laws.
(i)
The Loan Parties are in compliance with the U.S. Foreign Corrupt Practices Act of 1977, as amended and the anti-bribery and anti-corruption
laws of those jurisdictions in which they do business (collectively, the “Anti-Corruption Laws”).
(ii)
None of the Loan Parties has at any time:
(A)
offered, promised, paid, given, or authorized the payment or giving of any money, gift or other thing of value, directly or indirectly,
to or for the benefit of any employee, official, representative, or other person acting on behalf of any foreign (i.e., non-U.S.)
Governmental Authority thereof, or of any public international organization, or any foreign political party or official thereof,
or candidate for foreign political office (collectively, “Foreign Official”), for the purpose of: (1) influencing
any act or decision of such Foreign Official in his, her, or its official capacity; or (2) inducing such Foreign Official to do,
or omit to do, an act in violation of the lawful duty of such Foreign Official, or (3) securing any improper advantage, in order
to obtain or retain business for, or with, or to direct business to, any Person; or
(B)
acted or attempted to act in any manner which would subject any of the Loan Parties to liability under any Anti-Corruption Law.
(iii)
There are, and have been, no allegations, investigations or inquiries with regard to a potential violation of any Anti-Corruption
Law by any of the Loan Parties or any of their respective current or former directors, officers, employees, stockholders or agents,
or other persons acting or purporting to act on their behalf.
(iv)
The Loan Parties have adopted, implemented and maintain anti-bribery and anti-corruption policies and procedures that are reasonably
designed to ensure compliance with the Anti-Corruption Laws.
(aa)
Full Disclosure.
(i)
Each Loan Party has disclosed to the Agents all agreements, instruments and corporate or other restrictions to which it is subject,
and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect. None of the reports, financial statements, certificates or other information furnished by or on behalf of any
Loan Party to the Agents (other than forward-looking information and projections and information of a general economic nature
and general information about Borrowers’ industry) in connection with the negotiation of this Agreement or delivered hereunder
(as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the circumstances under which it was made, not misleading.
(ii)
Projections, have been prepared on a reasonable basis and in good faith based on assumptions, estimates, methods and tests that
are believed by the Loan Parties to be reasonable at the time such Projections were prepared and information believed by the Loan
Parties to have been accurate based upon the information available to the Loan Parties at the time such Projections were furnished
to the Lenders, and Parent is not be aware of any facts or information that would lead it to believe that such Projections are
incorrect or misleading in any material respect; it being understood that (A) Projections are by their nature subject to significant
uncertainties and contingencies, many of which are beyond the Loan Parties’ control, (B) actual results may differ materially
from the Projections and such variations may be material and (C) the Projections are not a guarantee of performance.
(bb)
Lung Disease Claims. The Parent and its Subsidiaries maintain adequate reserves for 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, and such reserves are not less than those required by GAAP.
(cc)
Bonding Capacity. Each of the Loan Parties has a sufficient mine bonding capacity to conduct its operations as projected
in accordance with the Projections provided to the Origination Agent.
(dd)
Permit Blockage. No Loan Party has been barred for a period in excess of fourteen (14) consecutive days from receiving
surface mining or underground mining permits pursuant to the permit block provisions of the Surface Mining Control and Reclamation
Act, 30 U.S.C. §§ 1201 et seq., and the regulations promulgated thereto, or any corresponding state laws or regulations.
ARTICLE
VII
COVENANTS OF THE LOAN PARTIES
Section
7.01 Affirmative Covenants. So long as any principal of or interest on any Loan or any other Obligation (whether or not
due) shall remain unpaid (other than Contingent Indemnity Obligations) or any Lender shall have any Commitment hereunder, each
Loan Party will, unless the Required Lenders shall otherwise consent in writing:
(a)
Reporting Requirements. Furnish- to each Agent and each Lender:
(i)
as soon as available, and in any event within 30 days after the end of each fiscal month of the Parent and its Subsidiaries commencing
with the first fiscal month of the Parent and its Subsidiaries ending after the Effective Date, (A) internally prepared consolidated
and consolidating balance sheets, statements of operations and retained earnings and statements of cash flows as at the end of
such fiscal month, and for the period commencing at the end of the immediately preceding Fiscal Year and ending with the end of
such fiscal month, all in reasonable detail and certified by an Authorized Officer of the Parent as fairly presenting, in all
material respects, the financial position of the Parent and its Subsidiaries as at the end of such fiscal month and the results
of operations, retained earnings and cash flows of the Parent and its Subsidiaries for such fiscal month and for such year-to-date
period, in accordance with GAAP applied in a manner consistent with that of the most recent audited financial statements furnished
to the Agents and the Lenders, subject to the absence of footnotes and normal year-end adjustments, and (B) setting forth in comparative
form the figures for the corresponding date or period set forth in (1) the financial statements for the immediately preceding
Fiscal Year and (2) the Projections;
(ii)
as soon as available and in any event within 45 days after the end of each fiscal quarter of the Parent and its Subsidiaries commencing
with the first fiscal quarter of the Parent and its Subsidiaries ending after the Effective Date, (A) consolidated and consolidating
balance sheets, statements of operations and retained earnings and statements of cash flows of the Parent and its Subsidiaries
as at the end of such quarter, and for the period commencing at the end of the immediately preceding Fiscal Year and ending with
the end of such quarter, all in reasonable detail and certified by an Authorized Officer of the Parent as fairly presenting, in
all material respects, the financial position of the Parent and its Subsidiaries as of the end of such quarter and the results
of operations and cash flows of the Parent and its Subsidiaries for such quarter and for such year-to-date period, in accordance
with GAAP applied in a manner consistent with that of the most recent audited financial statements of the Parent and its Subsidiaries
furnished to the Agents and the Lenders, subject to the absence of footnotes and normal year-end adjustments, and (B) setting
forth in comparative form the figures for the corresponding date or period set forth in (1) the financial statements for the immediately
preceding Fiscal Year and (2) the Projections;
(iii)
as soon as available, and in any event within 90 days after the end of each Fiscal Year of the Parent and its Subsidiaries, (A)
consolidated and consolidating balance sheets, statements of operations and retained earnings and statements of cash flows of
the Parent and its Subsidiaries as at the end of such Fiscal Year, all in reasonable detail and prepared in accordance with GAAP,
and accompanied by a report and an opinion, prepared in accordance with generally accepted auditing standards, of independent
certified public accountants of recognized standing selected by the Parent and satisfactory to the Origination Agent (which opinion
shall be without (1) a “going concern” or like qualification or exception, (2) any qualification or exception as to
the scope of such audit, or (3) any qualification which relates to the treatment or classification of any item and which, as a
condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause
any noncompliance with the provisions of Section 7.03), together with a written statement of such accountants (x) to the effect
that, in making the examination necessary for their certification of such financial statements, they have not obtained any knowledge
of the existence of an Event of Default or a Default under Section 7.03 and (y) if such accountants shall have obtained any knowledge
of the existence of an Event of Default or Default under Section 7.03, describing the nature thereof, and (B) setting forth in
comparative form the figures for the corresponding date or period set forth in (1) the financial statements for the immediately
preceding Fiscal Year, and (2) the Projections;
(iv)
simultaneously with the delivery of the financial statements of the Parent and its Subsidiaries required by clauses (i), (ii)
and (i) of this Section 7.01(a), a certificate of an Authorized Officer of the Parent (a “Compliance Certificate”):
(A)
stating that such Authorized Officer has reviewed the provisions of this Agreement and the other Loan Documents and has made or
caused to be made under his or her supervision a review of the condition and operations of the Parent and its Subsidiaries during
the period covered by such financial statements with a view to determining whether the Parent and its Subsidiaries were in compliance
with all of the provisions of this Agreement and such Loan Documents at the times such compliance is required hereby and thereby,
and that such review has not disclosed, and such Authorized Officer has no knowledge of, the occurrence and continuance during
such period of an Event of Default or Default or, if an Event of Default or Default had occurred and continued or is continuing,
describing the nature and period of existence thereof and the action which the Parent and its Subsidiaries propose to take or
have taken with respect thereto,
(B)
in the case of the delivery of the financial statements of the Parent and its Subsidiaries required by clauses (ii) and (i) of
this Section 7.01(a), (1) attaching a schedule showing the calculation of the financial covenants specified in Section 7.03 and
(2) including a discussion and analysis of the financial condition and results of operations of the Parent and its Subsidiaries
for the portion of the Fiscal Year then elapsed and discussing the reasons for any significant variations from the Projections
for such period and the figures for the corresponding period in the previous Fiscal Year, and
(C)
in the case of the delivery of the financial statements of the Parent and its Subsidiaries required by clause (i) of this Section
7.01(a), attaching (1) a summary of all material insurance coverage maintained as of the date thereof by any Loan Party or any
of its Subsidiaries and evidence that such insurance coverage meets the requirements set forth in Section 7.01, each Security
Agreement and each Mortgage, together with such other related documents and information as the Origination Agent may reasonably
require, (2) the calculation of the Excess Cash Flow in accordance with the terms of Section 2.05(c)(i) and (3) confirmation that
there have been no changes to the information contained in each of the Perfection Certificates delivered on the Effective Date
or the date of the most recently updated Perfection Certificate delivered pursuant to this clause (iv) and/or attaching an updated
Perfection Certificate identifying any such changes to the information contained therein;
(v)
as soon as available and in any event within 10 Business Days after the end of each fiscal month of the Parent and its Subsidiaries
commencing with the first fiscal month of the Parent and its Subsidiaries ending after the Effective Date, reports in form and
detail satisfactory to the Origination Agent and certified by an Authorized Officer of the Administrative Borrower as being accurate
and complete (A) listing all Accounts of the Loan Parties as of such day, which shall include the amount and age of each such
Account, showing separately those which are more than 30, 60, 90 and 120 days old and a description of all Liens, set-offs, defenses
and counterclaims with respect thereto, together with a reconciliation of such schedule with the schedule delivered to the Agents
pursuant to this clause (v)(A) for the immediately preceding fiscal month, and such other information as any Agent may request,
(B) listing all accounts payable of the Loan Parties as of each such day which shall include the amount and age of each such account
payable, (C) listing all Inventory of the Loan Parties as of each such day, and containing a breakdown of such Inventory by type
and amount, the cost and the current market value thereof (by location), the warehouse and production facility location and such
other information as any Agent may request, all in detail and in form satisfactory to the Origination Agent, (D) listing all coal
land right sale proceeds and/or associated royalties received by the Parent and its Subsidiaries in the immediately preceding
fiscal month, in detail and in form satisfactory to the Origination Agent, (E) listing of all coal sales and coal production reports
of the Parent and its Subsidiaries for the immediately preceding fiscal month, in detail and in form satisfactory to the Origination
Agent and (F) listing of all outstanding mining and surety bonds and the amount of cash collateral posted with respect to such
bonds;
(vi)
as soon as available and in any event within 3 Business Days after the end of every other week commencing with the first week
ending after the Effective Date, a Collateral Coverage Amount Certificate, current as of the close of business on the Friday of
the immediately preceding week, supported by schedules showing the derivation thereof and containing such detail and other information
as the Origination Agent may request from time to time, provided that (A) the Collateral Coverage Amount set forth in the Collateral
Coverage Amount Certificate shall be effective from and including the date such Collateral Coverage Amount Certificate is duly
received by the Origination Agent but not including the date on which a subsequent Collateral Coverage Amount Certificate is received
by the Origination Agent, unless the Origination Agent disputes the eligibility of any property included in the calculation of
the Collateral Coverage Amount or the valuation thereof by notice of such dispute to the Administrative Borrower and (B) in the
event of any dispute about the eligibility of any property included in the calculation of the Collateral Coverage Amount or the
valuation thereof, the Origination Agent’s good faith judgment shall control;
(vii)
as soon as available and in any event not later than 30 days prior to the end of each fiscal quarter, a certificate of an Authorized
Officer of the Parent (A) attaching Projections for the Parent and its Subsidiaries, supplementing and superseding the Projections
previously required to be delivered pursuant to this Agreement, prepared on a monthly basis and otherwise in form and substance
satisfactory to the Origination Agent, for the immediately succeeding fiscal quarter for the Parent and its Subsidiaries and (B)
certifying that the representations and warranties set forth in Section 6.01(aa)(ii) are true and correct with respect to the
Projections;
(viii)
as soon as available and in any event not later than 30 days prior to the end of each Fiscal Year, a certificate of an Authorized
Officer of the Parent (A) attaching Projections for the Parent and its Subsidiaries, supplementing and superseding the Projections
previously required to be delivered pursuant to this Agreement, prepared on a monthly basis and otherwise in form and substance
satisfactory to the Origination Agent, for the immediately succeeding Fiscal Year for the Parent and its Subsidiaries and (B)
certifying that the representations and warranties set forth in Section 6.01(aa)(ii) are true and correct with respect to the
Projections;
(ix)
as soon as available and in any event within 45 days after the end of each Fiscal Year of the Parent and its Subsidiaries commencing
with the first Fiscal Year of the Parent and its Subsidiaries ending after the Effective Date, a Qualified Reserve Report;
(x)
as soon as available and in any event within 30 days after the end of each fiscal quarter of the Parent and its Subsidiaries commencing
with the fiscal quarter ending December 31, 2017, a roll-forward, in a format satisfactory to the Origination Agent, of the Qualified
Reserve Report most recently delivered tied to the beginning and ending of such fiscal quarter;
(xi)
as soon as available and in any event within 30 days after the end of each fiscal quarter of the Parent and its Subsidiaries commencing
with the fiscal quarter ending December 31, 2017, copies of written notices received during such fiscal quarter alleging a Loan
Party is not in compliance with its permitting requirements under its National Pollutant Discharge Elimination System and that
may result in a closure order;
(xii)
as soon as available and in any event within 30 days after the end of each Fiscal Year of
the Parent and its Subsidiaries commencing with the Fiscal Year ending December 31, 2017,
a mine inspection report, in form, substance and detail satisfactory to the Origination Agent, from a mine inspection firm satisfactory
to the Origination Agent, setting forth a statement of the costs and expenses of conducting the reclamation activities, if any,
at each permit area required by all applicable Reclamation Laws, together with the face amount of the surety, reclamation or similar
bonds securing the obligations of the Loan Parties and their Subsidiaries with respect to each such permit area;
(xiii)
promptly after submission to any Governmental Authority, all documents and information furnished to such Governmental Authority
in connection with any investigation of any Loan Party other than routine inquiries by such Governmental Authority;
(xiv)
as soon as possible, and in any event within 3 days after the occurrence of an Event of Default or Default or the occurrence of
any event or development that could reasonably be expected to have a Material Adverse Effect, the written statement of an Authorized
Officer of the Administrative Borrower setting forth the details of such Event of Default or Default or other event or development
having a Material Adverse Effect and the action which the affected Loan Party proposes to take with respect thereto;
(xv)
(A) as soon as possible and in any event within 10 days after any Loan Party or any ERISA Affiliate thereof knows or has reason
to know that (1) any Reportable Event with respect to any Employee Plan has occurred, (2) any other Termination Event with respect
to any Employee Plan has occurred, or (3) an accumulated funding deficiency has been incurred or an application has been made
to the Secretary of the Treasury for a waiver or modification of the minimum funding standard (including installment payments)
or an extension of any amortization period under Section 412 of the Internal Revenue Code with respect to an Employee Plan, a
statement of an Authorized Officer of the Administrative Borrower setting forth the details of such occurrence and the action,
if any, which such Loan Party or such ERISA Affiliate proposes to take with respect thereto, (B) promptly and in any event within
3 days after receipt thereof by any Loan Party or any ERISA Affiliate thereof from the PBGC, copies of each notice received by
any Loan Party or any ERISA Affiliate thereof of the PBGC’s intention to terminate any Plan or to have a trustee appointed
to administer any Plan, (C) promptly and in any event within 10 days after the filing thereof with the Internal Revenue Service
if requested by any Agent, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect
to each Employee Plan and Multiemployer Plan, (D) promptly and in any event within 10 days after any Loan Party or any ERISA Affiliate
thereof knows or has reason to know that a required installment within the meaning of Section 412 of the Internal Revenue Code
has not been made when due with respect to an Employee Plan, (E) promptly and in any event within 3 days after receipt thereof
by any Loan Party or any ERISA Affiliate thereof from a sponsor of a Multiemployer Plan or from the PBGC, a copy of each notice
received by any Loan Party or any ERISA Affiliate thereof concerning the imposition or amount of withdrawal liability under Section
4202 of ERISA or indicating that such Multiemployer Plan may enter reorganization status under Section 4241 of ERISA, and (F)
promptly and in any event within 10 days after any Loan Party or any ERISA Affiliate thereof sends notice of a plant closing or
mass layoff (as defined in WARN) to employees, copies of each such notice sent by such Loan Party or such ERISA Affiliate thereof;
(xvi)
promptly after the commencement thereof but in any event not later than 5 days after service of process with respect thereto on,
or the obtaining of knowledge thereof by, any Loan Party, notice of each action, suit or proceeding before any court or other
Governmental Authority or other regulatory body or any arbitrator which, if adversely determined, could reasonably be expected
to have a Material Adverse Effect;
(xvii)
as soon as possible and in any event within 5 days after execution, receipt or delivery thereof, copies of any material notices
that any Loan Party executes or receives in connection with any Material Contract;
(xviii)
as soon as possible and in any event within 5 days after execution, receipt or delivery thereof, copies of any material notices
that any Loan Party executes or receives in connection with the sale or other Disposition of the Equity Interests of, or all or
substantially all of the assets of, any Loan Party;
(xix)
as soon as possible and in any event within 5 days after the delivery thereof to the Parent’s or the Borrowers’ Board
of Directors, copies of all reports or other information so delivered;
(xx)
promptly after (A) the sending or filing thereof, copies of all statements, reports and other information any Loan Party sends
to any holders of its Indebtedness or its securities or files with the SEC or any national (domestic or foreign) securities exchange
and (B) the receipt thereof, a copy of any material notice received from any holder of its Indebtedness;
(xxi)
promptly after the occurrence thereof, notice of any material change other than in the ordinary course of business to any material
coal sales agreement or material contract, material contract mining agreement or material coal purchase agreement to which the
Parent or any of its Subsidiaries is a party;
(xxii)
promptly upon receipt thereof, copies of all financial reports (including, without limitation, management letters), if any, submitted
to any Loan Party by its auditors in connection with any annual or interim audit of the books thereof;
(xxiii)
access to view the current balances of all of the checking, savings and other accounts of the Loan Parties online;
(xxiv)
promptly upon request, any certification or other evidence requested from time to time by any Lender in its sole discretion, confirming
the Borrowers’ compliance with Section 7.02(r);
(xxv)
simultaneously with the delivery of the financial statements of the Parent and its Subsidiaries required by clauses (i), (ii)
and (iii) of this Section 7.01(a), if, as a result of any change in accounting principles and policies from those used in the
preparation of the Financial Statements that is permitted by Section 7.02(q), the consolidated financial statements of the Parent
and its Subsidiaries delivered pursuant to clauses (i), (ii) and (iii) of this Section 7.01(a) will differ from the consolidated
financial statements that would have been delivered pursuant to such subdivisions had no such change in accounting principles
and policies been made, then, together with the first delivery of such financial statements after such change, one or more statements
of reconciliation for all such prior financial statements in form and substance satisfactory to the Origination Agent; and
(xxvi)
promptly upon request, such other information concerning the condition or operations, financial or otherwise, of any Loan Party
as any Agent may from time to time may reasonably request.
(b)
Additional Guarantors and Collateral Security. Cause:
(i)
each Subsidiary of any Loan Party not in existence on the Effective Date, to execute and deliver to the Collateral Agent promptly
and in any event within 3 days after the formation, acquisition or change in status thereof, (A) a Joinder Agreement, pursuant
to which such Subsidiary shall be made a party to this Agreement as a Guarantor, (B) a supplement to the Security Agreement, together
with (1) certificates evidencing all of the Equity Interests of any Person owned by such Subsidiary required to be pledged under
the terms of the Security Agreement, (2) undated stock powers for such Equity Interests executed in blank with signature guaranteed,
and (3) such opinions of counsel as the Origination Agent may reasonably request, (C) to the extent required under the terms of
this Agreement, one or more Mortgages creating on the real property of such Subsidiary a perfected, first priority Lien (in terms
of priority, subject only to Permitted Specified Liens) on such real property and such other Real Property Deliverables as may
be required by the Collateral Agent with respect to each such real property, and (D) such other agreements, instruments, approvals
or other documents reasonably requested by the Origination Agent in order to create, perfect, establish the first priority of
or otherwise protect any Lien purported to be covered by any such Security Agreement or Mortgage or otherwise to effect the intent
that such Subsidiary shall become bound by all of the terms, covenants and agreements contained in the Loan Documents and that
all property and assets of such Subsidiary shall become Collateral for the Obligations; and
(ii)
each owner of the Equity Interests of any such Subsidiary to execute and deliver promptly and in any event within 3 days after
the formation or acquisition of such Subsidiary a Pledge Amendment (as defined in the Security Agreement), together with (A) certificates
evidencing all of the Equity Interests of such Subsidiary required to be pledged under the terms of the Security Agreement, (B)
undated stock powers or other appropriate instruments of assignment for such Equity Interests executed in blank with signature
guaranteed, (C) such opinions of counsel as the Origination Agent may reasonably request and (D) such other agreements, instruments,
approvals or other documents requested by the Origination Agent.
Notwithstanding
the foregoing, no Foreign Subsidiary shall be required to become a Guarantor hereunder (and, as such, shall not be required to
deliver the documents required by clause (i) above; provided, however, that if the Equity Interests of a Foreign
Subsidiary are owned by a Loan Party, such Loan Party shall deliver all such documents, instruments, agreements (including, without
limitation, at the reasonable request of the Collateral Agent, a pledge agreement governed by the laws of the jurisdiction of
the organization of such Foreign Subsidiary) and certificates described in clause (ii) above to the Collateral Agent, and take
all commercially reasonable actions reasonably requested by the Collateral Agent or otherwise necessary to grant and to perfect
a first-priority Lien (subject to Permitted Specified Liens) in favor of the Collateral Agent, for the benefit of the Agents and
the Lenders, in 65% of the voting Equity Interests of such Foreign Subsidiary and 100% of all other Equity Interests of such Foreign
Subsidiary owned by such Loan Party.
(c)
Compliance with Laws; Payment of Taxes.
(i)
Comply, and cause each of its Subsidiaries to comply, in all material respects, with all Requirements of Law, judgments and awards
(including any settlement of any claim that, if breached, could give rise to any of the foregoing).
(ii)
Pay, and cause each of its Subsidiaries to pay, in full before delinquency or before the expiration of any extension period, all
Taxes imposed upon any Loan Party or any of its Subsidiaries or any property of any Loan Party or any of its Subsidiaries, except
(i) unpaid Taxes in an aggregate amount at any one time not in excess of $250,000, and (ii) Taxes contested in good faith by proper
proceedings which stay the imposition of any Lien resulting from the non-payment thereof and with respect to which adequate reserves
have been set aside for the payment thereof in accordance with GAAP.
(d)
Preservation of Existence, Etc. Maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, its
existence, rights and privileges, and become or remain, and cause each of its Subsidiaries to become or remain, duly qualified
and in good standing in each jurisdiction in which the character of the properties owned or leased by it or in which the transaction
of its business makes such qualification necessary, except to the extent that the failure to be so qualified could not reasonably
be expected to have a Material Adverse Effect.
(e)
Keeping of Records and Books of Account. Keep, and cause each of its Subsidiaries to keep, adequate records and books of
account, with complete entries made to permit the preparation of financial statements in accordance with GAAP.
(f)
Inspection Rights. Permit, and cause each of its Subsidiaries to permit, the agents and representatives of any Agent at
any time and from time to time during normal business hours, at the expense of the Borrowers, to examine and make copies of and
abstracts from its records and books of account, to visit and inspect its properties, to verify materials, leases, notes, accounts
receivable, deposit accounts and its other assets, to conduct audits, physical counts, valuations, appraisals or examinations
and to discuss its affairs, finances and accounts with any of its directors, officers, managerial employees, independent accountants
or any of its other representatives. In furtherance of the foregoing, each Loan Party hereby authorizes its independent accountants,
and the independent accountants of each of its Subsidiaries, to discuss the affairs, finances and accounts of such Person (independently
or together with representatives of such Person) with the agents and representatives of any Agent in accordance with this Section
7.01(f).
(g)
Maintenance of Properties, Etc. Maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, all
of its properties which are necessary or useful in the proper conduct of its business in good working order and condition, ordinary
wear and tear and casualty excepted, and comply, and cause each of its Subsidiaries to comply, at all times with the provisions
of all leases to which it is a party as lessee or under which it occupies property, so as to prevent any loss or forfeiture thereof
or thereunder, except to the extent the failure to so maintain and preserve or so comply could not reasonably be expected to have
a Material Adverse Effect.
(h)
Maintenance of Insurance. Maintain, and cause each of its Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations (including, without limitation, comprehensive general liability, hazard, flood, rent, worker’s
compensation and business interruption insurance) with respect to the Collateral and its other properties (including all real
property leased or owned by it) and business, in such amounts and covering such risks as is (i) carried generally in accordance
with sound business practice by companies in similar businesses similarly situated, (ii) required by any Requirement of Law, (iii)
required by any Material Contract and (iv) in any event in amount, adequacy and scope reasonably satisfactory to the Collateral
Agent. All policies covering the Collateral are to be made payable to the Collateral Agent for the benefit of the Agents and the
Lenders, as their interests may appear, in case of loss, under a standard non-contributory “lender” or “secured
party” clause and are to contain such other provisions as the Collateral Agent may require to fully protect the Lenders’
interest in the Collateral and to any payments to be made under such policies. All certificates of insurance are to be delivered
to the Collateral Agent and the policies are to be premium prepaid, with the loss payable and additional insured endorsement in
favor of the Collateral Agent for the benefit of the Agents and the Lenders, as their respective interests may appear, and such
other Persons as the Collateral Agent may designate from time to time, and shall provide for not less than 30 days’ (10
days’ in the case of non-payment) prior written notice to the Collateral Agent of the exercise of any right of cancellation.
If any Loan Party or any of its Subsidiaries fails to maintain such insurance, the Collateral Agent may arrange for such insurance,
but at the Borrowers’ expense and without any responsibility on the Collateral Agent’s part for obtaining the insurance,
the solvency of the insurance companies, the adequacy of the coverage, or the collection of claims. Upon the occurrence and during
the continuance of an Event of Default, the Collateral Agent shall have the sole right, in the name of the Lenders, any Loan Party
and its Subsidiaries, to file claims under any insurance policies, to receive, receipt and give acquittance for any payments that
may be payable thereunder, and to execute any and all endorsements, receipts, releases, assignments, reassignments or other documents
that may be necessary to effect the collection, compromise or settlement of any claims under any such insurance policies.
(i)
Obtaining of Permits, Etc. Obtain, maintain and preserve, and cause each of its Subsidiaries to obtain, maintain and preserve,
and take all necessary action to timely renew, all permits, licenses, authorizations, approvals, entitlements and accreditations
that are necessary or useful in the proper conduct of its business, in each case, except to the extent the failure to obtain,
maintain, preserve or take such action could not reasonably be expected to have a Material Adverse Effect.
(j)
Environmental.
(i)
Keep the Collateral free of any Environmental Lien;
(ii)
Obtain, maintain and preserve, and cause each of its Subsidiaries to obtain, maintain and preserve, and take all necessary action
to timely renew, all Environmental Permits that are necessary or useful in the proper conduct of its business, and comply, and
cause each of its Subsidiaries to comply, with all Environmental Laws and Environmental Permits in all material respects;
(iii)
Take all commercially reasonable steps to prevent any Release of Hazardous Materials in violation of any Environmental Law or
Environmental Permit at, on, under or from any property owned, leased or operated by any Loan Party or its Subsidiaries that could
reasonably be expected to result in material Environmental Liabilities;
(iv)
Provide the Origination Agent with written notice within ten (10) days of any of the following: (A) discovery of any Release of
a Hazardous Material or environmental condition at, on, under or from any property currently or formerly owned, leased or operated
by any Loan Party, Subsidiary or predecessor in interest or any violation of Environmental Law or Environmental Permit that in
any case could reasonably be expected to result in any material Environmental Claim or Environmental Liability; (B) notice that
an Environmental Lien has been filed against any Collateral; or (C) a material Environmental Claim or Environmental Liabilities;
and provide such reports, documents and information as the Origination Agent may reasonably request from time to time with respect
to any of the foregoing; and
(v)
Undertake, or cause to be undertaken, all Remedial Actions in response to any Environmental Claim, the presence, Release or threatened
Release of a Hazardous Material, any environmental condition or a violation of Environmental Law with respect to any Facility.
Upon the request of the Collateral Agent, provide copies of all data, information and reports generated in connection with the
foregoing to the Collateral Agent.
(k)
Fiscal Year. Cause the Fiscal Year of the Parent and its Subsidiaries to end on December 31st of each calendar
year unless the Agents consent to a change in such Fiscal Year (and appropriate related changes to this Agreement).
(l)
Reserved.
(m)
After Acquired Real Property. Upon the acquisition by it or any of its Subsidiaries after the date hereof of any interest
(whether fee or leasehold) in any real property or mineral interests (wherever located) (each such interest being a “New
Facility”) (i) with a Current Value (as defined below) in excess of $250,000 in the case of a fee interest, or (ii)
requiring the payment of annual rent or royalties exceeding in the aggregate of $100,000 in the case of leasehold interest, immediately
so notify the Origination Agent, setting forth with specificity a description of the interest acquired, the location of the real
property, any structures or improvements thereon and such Loan Party’s good-faith estimate of the current value of such
real property (for purposes of this Section, the “Current Value”). The Origination Agent shall notify such
Loan Party whether it intends to require a Mortgage (and any other Real Property Deliverables) with respect to such New Facility.
Upon receipt of such notice requesting a Mortgage (and any other Real Property Deliverables), the Person that has acquired such
New Facility shall promptly furnish the same to the Collateral Agent. The Borrowers shall pay all fees and expenses, including,
without limitation, reasonable attorneys’ fees and expenses, and all title insurance charges and premiums, in connection
with each Loan Party’s obligations under this Section 7.01(m).
(n)
Anti-Bribery and Anti-Corruption Laws. Maintain, and cause each of its Subsidiaries to maintain, anti-bribery and anti-corruption
policies and procedures that are reasonably designed to ensure compliance with the Anti-Corruption Laws.
(o)
Lender Meetings. Promptly after the end of each fiscal quarter, participate in a meeting (which may, at the option of the
Origination Agent, be held telephonically) with the Agents and the Lenders at the Borrowers’ corporate offices (or at such
other location as may be agreed to by the Administrative Borrower and the Origination Agent) at such time as may be agreed to
by the Administrative Borrower and the Origination Agent.
(p)
Further Assurances. Take such action and execute, acknowledge and deliver, and cause each of its Subsidiaries to take such
action and execute, acknowledge and deliver, at its sole cost and expense, such agreements, instruments or other documents as
any Agent may require from time to time in order (i) to carry out more effectively the purposes of this Agreement and the other
Loan Documents, (ii) to subject to valid and perfected first priority Liens any of the Collateral or any other property of any
Loan Party and its Subsidiaries, (iii) to establish and maintain the validity and effectiveness of any of the Loan Documents and
the validity, perfection and priority of the Liens intended to be created thereby, and (iv) to better assure, convey, grant, assign,
transfer and confirm unto each Secured Party the rights now or hereafter intended to be granted to it under this Agreement or
any other Loan Document. In furtherance of the foregoing, to the maximum extent permitted by applicable law, each Loan Party (i)
authorizes each Agent to execute any such agreements, instruments or other documents in such Loan Party’s name and to file
such agreements, instruments or other documents in any appropriate filing office, (ii) authorizes each Agent to file any financing
statement required hereunder or under any other Loan Document, and any continuation statement or amendment with respect thereto,
in any appropriate filing office without the signature of such Loan Party, and (iii) ratifies the filing of any financing statement,
and any continuation statement or amendment with respect thereto, filed without the signature of such Loan Party prior to the
date hereof.
(q)
Compliance with Reclamation Laws.
(i)
Conduct all reclamation activities at each permit area owned, leased or used by any Loan Party
or any Subsidiary of a Loan Party in accordance with all applicable Reclamation Laws, except to the extent that the failure to
conduct any such reclamation activities at such permit area in accordance with all applicable Reclamation Laws could not be reasonably
expected to have either individually or in the aggregate a Material Adverse Effect;
(ii)
Have in effect any surety, reclamation or similar bonds or acceptable form of financial assurance
securing the obligations of such Loan Party or such Subsidiary with respect to reclamation activities in the amount and form required
by applicable Reclamation Laws;
(iii)
Within five (5) Business Days of the receipt thereof, the Administrative Borrower shall give
notice to the Origination Agent of the receipt by any Loan Party or any Subsidiary of a Loan Party of any cessation order (or
similar notice from a Governmental Authority) (each, a “Reclamation Order”) under any applicable Reclamation
Laws with respect to any failure, after any applicable cure period, to fully and properly initiate, perform or complete reclamation
contemporaneous with mining or any failure to provide or maintain required reclamation bond, performance security or other acceptable
form of financial assurance, or any failure to obtain or denial of any requested release of any reclamation bond, performance
security or other similar financial assurance, at any permit area owned, leased or used by the Loan Parties or any of their Subsidiaries;
(iv)
Upon receipt by any Loan Party or any Subsidiary of any Loan Party of any Reclamation Order,
the Origination Agent and its officers, employees and agents shall have the right to, and the Loan Parties and their Subsidiaries
shall permit any such Person to, subject to applicable safety rules and regulations, (A) visit and inspect each permit area owned,
leased or used by any Loan Party or any Subsidiary of any Loan Party to which such Reclamation Order applies, and (B) prepare
or caused to be prepared an environmental report, in form, substance and detail satisfactory to the Origination Agent in their
sole discretion, with respect to each such permit area, which report shall set forth, inter alia, the costs and expenses of conducting
any reclamation activities on such permit area in accordance with applicable Reclamation Laws, together with the face amount of
the surety, reclamation or similar bonds or acceptable financial assurance securing the obligations of the Loan Parties and their
Subsidiaries with respect to each such permit area, and upon receipt by the Origination Agent of such environmental report, the
Origination Agent shall provide a copy to the Administrative Borrower; and
(v)
In the event that the environmental report referred to in Section 7.01(q)(iv) indicates that
the costs and expenses of conducting any reclamation activities on any permit area owned, leased or used by any Loan Party or
any Subsidiary of any Loan Party in accordance with applicable Reclamation Laws exceeds the face amount of the surety, reclamation
or similar bonds or acceptable financial assurance securing the obligations of such Loan Party or such Subsidiary with respect
to each such permit area, then (A) within thirty (30) days after the Administrative Borrower’s receipt thereof, the Administrative
Borrower shall provide to the Origination Agent a plan, in form, substance and detail satisfactory to the Origination Agent in
its reasonable discretion, setting forth the actions that the Loan Parties and their Subsidiaries shall take to address the issues
set forth in such environmental report and which gave rise to the applicable Reclamation Order, and (B) the Loan Parties and their
Subsidiaries shall take all such actions as set forth in such plan.
(r)
Maintenance of Coal Reserve Base. Maintain an aggregate tonnage of coal reserves controlled by the Parent and its Subsidiaries
(the “Coal Reserve Base”) that, as of the end of each Fiscal Year, is equal to or greater than five (5) times
the aggregate tons of coal produced by the Parent and its Subsidiaries during such Fiscal Year (the “Annual Production
Amount”); provided that any such coal reserves leased or subleased to third parties by the Parent or any of its Subsidiaries
shall be excluded from the Coal Reserve Base and coal produced from such leased or subleased coal reserves shall be excluded from
the Annual Production Amount.
(s)
Title Opinions. Within ninety (90) days after the Effective Date (as such date may be extended in the Origination Agent’s
discretion), the Loan Parties shall deliver to the Origination Agent title opinions, in form and substance reasonably satisfactory
to the Origination Agent, with respect to the Material Leases and Real Property of the Loan Parties described on Schedule 7.01(s),
together with title reports and other title information, in form and substance reasonably satisfactory to the Origination Agent,
that confirms the Loan Parties’ record title to all of its real property interests whether held in fee, leasehold, or acquired
through easement or operating agreement with respect to the Material Leases and Real Property of the Loan Parties described on
Schedule 7.01(s).
(t)
Landlord Waiver. Use commercially reasonable efforts to deliver to the Agents no later than 30 days after the Effective
Date (as such date may be extended by the Origination Agent in its discretion) a landlord waiver, in form and substance reasonably
satisfactory to the Origination Agent, executed by the applicable Loan Party and the landlord with respect to the Loan Parties’
headquarters location.
(u)
Aircraft Security. Within thirty (30) days after the Effective Date (as such date may be extended in the Origination Agent’s
discretion), the Loan Parties shall deliver to the Collateral Agent an aircraft security agreement, in form and substance reasonably
satisfactory to the Agents, with respect to the Loan Parties’ 1982 King Air B200, Serial #BB-949, tail number N949RE airplane,
together with all other deliverables necessary for the Collateral Agent’s lien in such airplane to be a perfected security
interest.
(v)
Mortgages and Lessor Consents. Within thirty (30) days after the Effective Date (as such date may be extended in the Origination
Agent’s discretion), the Loan Parties shall deliver to the Origination Agent (i) with respect to each Facility, each of
the Real Property Deliverables (other than lessor consents) and (ii) consents allowing for, among other things, a Lien to be obtained
upon the Loan Parties’ leases, from the lessors under the Material Leases set forth on Schedule 7.01(v), which such consents
shall be in form and substance reasonably acceptable to the Origination Agent.
(w)
Mammoth Energy Securities, Inc. On or prior to March 31, 2018, sell up to half of the shares of Mammoth Energy Securities,
Inc. that the Loan Parties own in exchange for the receipt by the Loan Parties of Net Cash Proceeds of at least $5,000,000, which
Net Cash Proceeds shall be applied to prepay the Loans in accordance with Section 2.05(c)(ii).
Section
7.02 Negative Covenants. So long as any principal of or interest on any Loan or any other Obligation (whether or not due)
shall remain unpaid (other than Contingent Indemnity Obligations) or any Lender shall have any Commitment hereunder, each Loan
Party shall not, unless the Required Lenders shall otherwise consent in writing:
(a)
Liens, Etc. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer
to exist, any Lien upon or with respect to any of its properties, whether now owned or hereafter acquired; file or suffer to exist
under the Uniform Commercial Code or any Requirement of Law of any jurisdiction, a financing statement (or the equivalent thereof)
that names it or any of its Subsidiaries as debtor; sign or suffer to exist any security agreement authorizing any secured party
thereunder to file such financing statement (or the equivalent thereof) other than, as to all of the above, Permitted Liens; provided,
that, no Liens shall be permitted on any assets included in the Collateral Coverage Amount other than the Liens of the Collateral
Agent for the benefit of the Agents and the Lenders.
(b)
Indebtedness. Create, incur, assume, guarantee or suffer to exist, or otherwise become or remain liable with respect to,
or permit any of its Subsidiaries to create, incur, assume, guarantee or suffer to exist or otherwise become or remain liable
with respect to, any Indebtedness other than Permitted Indebtedness.
(c)
Fundamental Changes; Dispositions.
(i)
Wind-up, liquidate or dissolve, or merge, consolidate or amalgamate with any Person, or permit any of its Subsidiaries to do (or
agree to do) any of the foregoing; provided, however, that any wholly-owned Subsidiary of any Loan Party (other
than a Borrower) may be merged into such Loan Party or another wholly-owned Subsidiary of such Loan Party, or may consolidate
or amalgamate with another wholly-owned Subsidiary of such Loan Party, so long as (A) no other provision of this Agreement would
be violated thereby, (B) such Loan Party gives the Agents at least 30 days’ prior written notice of such merger, consolidation
or amalgamation accompanied by true, correct and complete copies of all material agreements, documents and instruments relating
to such merger, consolidation or amalgamation, including, without limitation, the certificate or certificates of merger or amalgamation
to be filed with each appropriate Secretary of State (with a copy as filed promptly after such filing), (C) no Default or Event
of Default shall have occurred and be continuing either before or after giving effect to such transaction, (D) the Lenders’
rights in any Collateral, including, without limitation, the existence, perfection and priority of any Lien thereon, are not adversely
affected by such merger, consolidation or amalgamation and (E) the surviving Subsidiary, if any, if not already a Loan Party,
is joined as a Loan Party hereunder pursuant to a Joinder Agreement and is a party to a Security Agreement and the Equity Interests
of such Subsidiary is the subject of a Security Agreement, in each case, which is in full force and effect on the date of and
immediately after giving effect to such merger, consolidation or amalgamation; and
(ii)
Make any Disposition, whether in one transaction or a series of related transactions, of all or any part of its business, property
or assets, whether now owned or hereafter acquired (or agree to do any of the foregoing), or permit any of its Subsidiaries to
do any of the foregoing; provided, however, that any Loan Party and its Subsidiaries may make Permitted Dispositions.
(d)
Change in Nature of Business.
(i)
Make, or permit any of its Subsidiaries to make, any change in the nature of its business as described in Section 6.01(l); provided,
however, that the Loan Parties and/or any of their Subsidiaries may engage in any business related to Hydrocarbons, Hydrocarbon
Interests or Hydrocarbon Auxiliary Assets and Activities that are supplemental and ancillary to the business substantially as
conducted and operated or as proposed to be conducted and operated by such Loan Party or Subsidiary on the Effective Date.
(ii)
Permit the Parent to have any material liabilities (other than liabilities arising under the Loan Documents), own any material
assets (other than the Equity Interests of its Subsidiaries) or engage in any operations or business (other than the ownership
of its Subsidiaries).
(e)
Loans, Advances, Investments, Etc. Make or commit or agree to make, or permit any of its Subsidiaries make or commit or
agree to make, any Investment in any other Person except for Permitted Investments.
(f)
Sale and Leaseback Transactions. Enter into, or permit any of its Subsidiaries to enter into, any Sale and Leaseback Transaction.
(g)
Capital Expenditures. (i) Make or commit or agree to make, or permit any of its Subsidiaries to make or commit or agree
to make, any Capital Expenditure (by purchase or Capitalized Lease) that would cause the aggregate amount of all Capital Expenditures
made by the Loan Parties and their Subsidiaries in any trailing twelve month period of the Parent and its Subsidiaries ending
at the end of a fiscal quarter to exceed an amount equal to the product of (x) $5.00 times (y) the aggregate tonnage of
coal extracted by the Parent and its Subsidiaries in such period.
(ii)
Fail to make Capital Expenditures-Maintenance in any trailing twelve month period of the Parent and its Subsidiaries ending at
the end of a fiscal quarter of at least an amount equal to the product of (x) $3.50 times (y) the aggregate tonnage of
coal extracted by the Parent and its Subsidiaries in such period.
(h)
Restricted Payments. Make or permit any of its Subsidiaries to make any Restricted Payment other than Permitted Restricted
Payments.
(i)
Federal Reserve Regulations. Permit any Loan or the proceeds of any Loan under this Agreement to be used for any purpose
that would cause such Loan to be a margin loan under the provisions of Regulation T, U or X of the Board.
(j)
Transactions with Affiliates. Enter into, renew, extend or be a party to, or permit any of its Subsidiaries to enter into,
renew, extend or be a party to, any transaction or series of related transactions (including, without limitation, the purchase,
sale, lease, transfer or exchange of property or assets of any kind or the rendering of services of any kind) with any Affiliate,
except (i) transactions consummated in the ordinary course of business in a manner and to an extent consistent with past practice
and necessary or desirable for the prudent operation of its business, for fair consideration and on terms no less favorable to
it or its Subsidiaries than would be obtainable in a comparable arm’s length transaction with a Person that is not an Affiliate
thereof, and that are fully disclosed to the Agents prior to the consummation thereof, if they involve one or more payments by
the Parent or any of its Subsidiaries in excess of $100,000 for any single transaction or series of related transactions, (ii)
transactions with another Loan Party, (iii) transactions permitted by Section 7.02(e) and Section 7.02(h), (iv) sales of Qualified
Equity Interests of the Parent to Affiliates of the Parent not otherwise prohibited by the Loan Documents and the granting of
registration and other customary rights in connection therewith, (v) reasonable and customary director and officer compensation
(including bonuses and stock option programs), benefits and indemnification arrangements, in each case approved by the Board of
Directors (or a committee thereof) of such Loan Party or such Subsidiary and (vi) transactions contemplated by that (x) certain
Guaranty Fee Agreement with Royal Energy Resources, Inc. as in effect on the Effective Date, and (y) certain Coal Sales Agency
Agreement with Royal Energy Resources, Inc. as in effect on the Effective Date, in this case of clause (vi), not in excess of
$1,000,000 in the aggregate in any Fiscal Year.
(k)
Limitations on Dividends and Other Payment Restrictions Affecting Subsidiaries. Create or otherwise cause, incur, assume,
suffer or permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Subsidiary
of any Loan Party (i) to pay dividends or to make any other distribution on any shares of Equity Interests of such Subsidiary
owned by any Loan Party or any of its Subsidiaries, (ii) to pay or prepay or to subordinate any Indebtedness owed to any Loan
Party or any of its Subsidiaries, (iii) to make loans or advances to any Loan Party or any of its Subsidiaries or (iv) to transfer
any of its property or assets to any Loan Party or any of its Subsidiaries, or permit any of its Subsidiaries to do any of the
foregoing; provided, however, that nothing in any of clauses (i) through (iv) of this Section 7.02(k) shall prohibit
or restrict compliance with:
(A)
this Agreement and the other Loan Documents;
(B)
any agreement in effect on the date of this Agreement and described on Schedule 7.02(k), or any extension, replacement or continuation
of any such agreement; provided, that, any such encumbrance or restriction contained in such extended, replaced or continued
agreement is no less favorable to the Agents and the Lenders than the encumbrance or restriction under or pursuant to the agreement
so extended, replaced or continued;
(C)
any applicable law, rule or regulation (including, without limitation, applicable currency control laws and applicable state corporate
statutes restricting the payment of dividends in certain circumstances);
(D)
in the case of clause (iv), (1) customary restrictions on the subletting, assignment or transfer of any specified property or
asset set forth in a lease, license, asset sale agreement or similar contract for the conveyance of such property or asset and
(2) instrument or other document evidencing a Permitted Lien (or the Indebtedness secured thereby) from restricting on customary
terms the transfer of any property or assets subject thereto;
(E)
customary restrictions on dispositions of real property interests used for mining purposes, such as reversionary interests, repurchase
rights and easement agreements;
(F)
customary restrictions in agreements for the sale of assets on the transfer or encumbrance of such assets during an interim period
prior to the closing of the sale of such assets; or
(G)
customary restrictions in contracts that prohibit the assignment of such contract.
(l)
Limitations on Negative Pledges. Enter into, incur or permit to exist, or permit any Subsidiary to enter into, incur or
permit to exist, directly or indirectly, any agreement, instrument, deed, lease or other arrangement that prohibits, restricts
or imposes any condition upon the ability of any Loan Party or any Subsidiary of any Loan Party to create, incur or permit to
exist any Lien upon any of its property or revenues, whether now owned or hereafter acquired, or that requires the grant of any
security for an obligation if security is granted for another obligation, except the following: (i) this Agreement and the other
Loan Documents, (ii) restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by Section
7.02(b) of this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness,
(iii) any customary restrictions and conditions contained in agreements relating to the sale or other disposition of assets or
of a Subsidiary pending such sale or other disposition; provided that such restrictions and conditions apply only to the
assets or Subsidiary to be sold or disposed of and such sale or disposition is permitted hereunder, and (iv) customary provisions
in leases restricting the encumbrance, assignment or sublet thereof.
(m)
Modifications of Indebtedness, Organizational Documents and Certain Other Agreements; Etc.
(i)
Amend, modify or otherwise change (or permit the amendment, modification or other change in any manner of) any of the provisions
of any of its or its Subsidiaries’ Indebtedness or of any instrument or agreement (including, without limitation, any purchase
agreement, indenture, loan agreement or security agreement) relating to any such Indebtedness if such amendment, modification
or change would shorten the final maturity or average life to maturity of, or require any payment to be made earlier than the
date originally scheduled on, such Indebtedness, would increase the interest rate applicable to such Indebtedness, would add any
covenant or event of default, would change the subordination provision, if any, of such Indebtedness, or would otherwise be adverse
to the Lenders or the issuer of such Indebtedness in any respect;
(ii)
except for the Obligations, (A) make any voluntary or optional payment (including, without limitation, any payment of interest
in cash that, at the option of the issuer, may be paid in cash or in kind), prepayment, redemption, defeasance, sinking fund payment
or other acquisition for value of any of its or its Subsidiaries’ Indebtedness (including, without limitation, by way of
depositing money or securities with the trustee therefor before the date required for the purpose of paying any portion of such
Indebtedness when due), (B) refund, refinance, replace or exchange any other Indebtedness for any such Indebtedness (other than
with respect to Permitted Refinancing Indebtedness), (C) make any payment, prepayment, redemption, defeasance, sinking fund payment
or repurchase of any subordinated Indebtedness in violation of the subordination provisions thereof or any subordination agreement
with respect thereto, or (D) make any payment, prepayment, redemption, defeasance, sinking fund payment or repurchase of any Indebtedness
as a result of any asset sale, change of control, issuance and sale of debt or equity securities or similar event, or give any
notice with respect to any of the foregoing;
(iii)
amend, modify or otherwise change the Partnership Agreement (including, without limitation, by the filing or modification of any
certificate of designation, or any agreement or arrangement entered into by it), or any shareholder agreement related thereto
or enter into any new agreement with respect to the Parent’s Equity Interests, except any such amendments, modifications
or changes or any such new agreements or arrangements pursuant to this clause (iii) that are (A) not materially adverse to the
Agents and the Lenders (in their capacities as Agents and Lenders) or (B) approved by the Origination Agent;
(iv)
subject to Section 7.02(m)(iii), amend, modify or otherwise change any of its Governing Documents (including, without limitation,
by the filing or modification of any certificate of designation, or any agreement or arrangement entered into by it) with respect
to any of its Equity Interests (including any shareholders’ agreement), or enter into any new agreement with respect to
any of its Equity Interests, except any such amendments, modifications or changes or any such new agreements or arrangements pursuant
to this clause (iv) that either individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect;
or
(v)
agree to any amendment, modification or other change to or waiver of any of its rights under any Material Contract if such amendment,
modification, change or waiver would be materially adverse to any Loan Party or any of its Subsidiaries or the Agents and the
Lenders.
(n)
Investment Company Act of 1940. Engage in any business, enter into any transaction, use any securities or take any other
action or permit any of its Subsidiaries to do any of the foregoing, that would cause it or any of its Subsidiaries to become
subject to the registration requirements of the Investment Company Act of 1940, as amended, by virtue of being an “investment
company” or a company “controlled” by an “investment company” not entitled to an exemption within
the meaning of such Act.
(o)
ERISA. (i) Engage, or permit any ERISA Affiliate to engage, in any transaction described in Section 4069 of ERISA; (ii)
engage, or permit any ERISA Affiliate to engage, in any prohibited transaction described in Section 406 of ERISA or 4975 of the
Internal Revenue Code for which a statutory or class exemption is not available or a private exemption has not previously been
obtained from the U.S. Department of Labor; (iii) adopt or permit any ERISA Affiliate to adopt any employee welfare benefit plan
within the meaning of Section 3(1) of ERISA which provides benefits to employees after termination of employment other than as
required by Section 601 of ERISA or applicable law; (iv) fail to make any contribution or payment to any Multiemployer Plan which
it or any ERISA Affiliate may be required to make under any agreement relating to such Multiemployer Plan, or any law pertaining
thereto; or (v) fail, or permit any ERISA Affiliate to fail, to pay any required installment or any other payment required under
Section 412 of the Internal Revenue Code on or before the due date for such installment or other payment.
(p)
Environmental. Permit the use, handling, generation, storage, treatment, Release or disposal of Hazardous Materials at
any property owned, leased or operated by it or any of its Subsidiaries, except in compliance in all material respects with Environmental
Laws.
(q)
Accounting Methods. Modify or change, or permit any of its Subsidiaries to modify or change, its method of accounting or
accounting principles from those utilized in the preparation of the Financial Statements (other than as may be required to conform
to GAAP).
(r)
Anti-Money Laundering and Anti-Terrorism Laws.
(i)
None of the Loan Parties, nor any of their Affiliates or agents, shall:
(A)
conduct any business or engage in any transaction or dealing with or for the benefit of any Blocked Person, including the making
or receiving of any contribution of funds, goods or services to, from or for the benefit of any Blocked Person;
(B)
deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked or subject to blocking
pursuant to the OFAC Sanctions Programs;
(C)
use any of the proceeds of the transactions contemplated by this Agreement to finance, promote or otherwise support in any manner
any illegal activity, including, without limitation, any violation of the Anti-Money Laundering and Anti-Terrorism Laws or any
specified unlawful activity as that term is defined in the Money Laundering Control Act of 1986, 18 U.S.C. §§ 1956 and
1957; or
(D)
violate, attempt to violate, or engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of
evading or avoiding, any of the Anti-Money Laundering and Anti-Terrorism Laws.
(ii)
None of the Loan Parties, nor any Affiliate of any of the Loan Parties, nor any officer, director or principal shareholder or
owner of any of the Loan Parties, nor any of the Loan Parties’ respective agents acting or benefiting in any capacity in
connection with the Loans or other transactions hereunder, shall be or shall become a Blocked Person.
(s)
Anti-Bribery and Anti-Corruption Laws. None of the Loan Parties shall:
(i)
offer, promise, pay, give, or authorize the payment or giving of any money, gift or other thing of value, directly or indirectly,
to or for the benefit of any Foreign Official for the purpose of: (1) influencing any act or decision of such Foreign Official
in his, her, or its official capacity; or (2) inducing such Foreign Official to do, or omit to do, an act in violation of the
lawful duty of such Foreign Official, or (3) securing any improper advantage, in order to obtain or retain business for, or with,
or to direct business to, any Person; or
(ii)
act or attempt to act in any manner which would subject any of the Loan Parties to liability under any Anti-Corruption Law.
(t)
Bonding. None of the Loan Parties nor any of their Subsidiaries shall enter into any bonding arrangement with a new bonding
company with respect to the Loan Parties’ mining operations after the Effective Date without the prior written consent of
the Origination Agent.
Section
7.03 Financial Covenants. So long as any principal of or interest on any Loan or any other Obligation (whether or not due)
shall remain unpaid (other than Contingent Indemnity Obligations) or any Lender shall have any Commitment hereunder, each Loan
Party shall not, unless the Required Lenders shall otherwise consent in writing:
(a)
Collateral Coverage Amount. Permit the Collateral Coverage Amount to be less than, at any time, the aggregate outstanding
principal amount of Term Loans.
(b)
Fixed Charge Coverage Ratio. Permit the Fixed Charge Coverage Ratio of the Parent and its Subsidiaries for any trailing
six month period of the Parent and its Subsidiaries ending at the end of each fiscal quarter, commencing with the period ending
June 30, 2018, to be less than 1.20 to 1.00.
ARTICLE
VIII
CASH MANAGEMENT ARRANGEMENTS
AND OTHER COLLATERAL MATTERS
Section
8.01 Cash Management Arrangements. (a) The Loan Parties shall (i) establish and maintain cash management services of a
type and on terms reasonably satisfactory to the Agents at one or more of the banks set forth on Schedule 8.01 (each a “Cash
Management Bank”) and (ii) except as otherwise provided under Section 8.01(b), deposit or cause to be deposited promptly,
and in any event no later than the next Business Day after the date of receipt thereof, all proceeds in respect of any Collateral,
all Collections (of a nature susceptible to a deposit in a bank account) and all other amounts received by any Loan Party (including
payments made by Account Debtors directly to any Loan Party) into a Cash Management Account.
(b)
On or prior to the Effective Date, the Loan Parties shall, with respect to each Cash Management Account (other than Excluded Accounts),
deliver to the Collateral Agent a Control Agreement with respect to such Cash Management Account. The Loan Parties shall not maintain,
and shall not permit any of their Subsidiaries to maintain, cash, Cash Equivalents or other amounts in any deposit account or
securities account, unless the Collateral Agent shall have received a Control Agreement in respect of each such Cash Management
Account (other than Excluded Accounts).
(c)
Upon the terms and subject to the conditions set forth in a Control Agreement with respect to a Cash Management Account, all amounts
received in such Cash Management Account shall at the Administrative Agent’s direction be wired each Business Day into the
Administrative Agent’s Account, except that, so long as no Event of Default has occurred and is continuing, the Administrative
Agent will not direct the Cash Management Bank to transfer funds in such Cash Management Account to the Administrative Agent’s
Account.
(d)
So long as no Default or Event of Default has occurred and is continuing, the Borrowers may amend Schedule 8.01 to add or replace
a Cash Management Bank or Cash Management Account; provided, however, that (i) such prospective Cash Management
Bank shall be reasonably satisfactory to the Origination Agent and the Collateral Agent shall have consented in writing in advance
to the opening of such Cash Management Account with the prospective Cash Management Bank, and (ii) prior to the time of the opening
of such Cash Management Account, each Loan Party and such prospective Cash Management Bank shall have executed and delivered to
the Collateral Agent a Control Agreement. Each Loan Party shall close any of its Cash Management Accounts (and establish replacement
cash management accounts in accordance with the foregoing sentence) promptly and in any event within 30 days of notice from the
Collateral Agent that the creditworthiness of any Cash Management Bank is no longer acceptable in the Collateral Agent’s
reasonable judgment, or that the operating performance, funds transfer, or availability procedures or performance of such Cash
Management Bank with respect to Cash Management Accounts or the Collateral Agent’s liability under any Control Agreement
with such Cash Management Bank is no longer acceptable in the Collateral Agent’s reasonable judgment.
ARTICLE
IX
EVENTS OF DEFAULT
Section
9.01 Events of Default. Each of the following events shall constitute an event of default (each, an “Event of
Default”):
(a)
any Borrower shall fail to pay, when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise),
(i) any interest on any Loan, any Origination Agent Advance, or any fee, indemnity or other amount payable under this Agreement
(other than any portion thereof constituting principal of the Loans) or any other Loan Document, and such failure continues for
a period of three (3) Business Days or (ii) all or any portion of the principal of the Loans;
(b)
any representation or warranty made or deemed made by or on behalf of any Loan Party or by any officer of the foregoing under
or in connection with any Loan Document or under or in connection with any certificate or other writing delivered to any Secured
Party pursuant to any Loan Document shall have been incorrect in any material respect (or in any respect if such representation
or warranty is qualified or modified as to materiality or “Material Adverse Effect” in the text thereof) when made
or deemed made;
(c)
any Loan Party shall fail to perform or comply with any covenant or agreement contained in Section 7.01(a), Section 7.01(c), Section
7.01(d), Section 7.01(f), Section 7.01(h), Section 7.01(k), Section 7.01(m), Section 7.01(o), Section 7.01(s), Section 7.01(t),
7.01(u), 7.01(v), 7.01(w), Section 7.02 or Section 7.03 or Article VIII, or any Loan Party shall fail to perform or comply with
any covenant or agreement contained in any Security Agreement to which it is a party or any Mortgage to which it is a party;
(d)
any Loan Party shall fail to perform or comply with any other term, covenant or agreement contained in any Loan Document to be
performed or observed by it and, except as set forth in subsections (a), (b) and (c) of this Section 9.01, such failure, if capable
of being remedied, shall remain unremedied for 15 days after the earlier of the date a senior officer of any Loan Party has knowledge
of such failure and the date written notice of such default shall have been given by any Agent to such Loan Party;
(e)
the Parent or any of its any Subsidiaries shall fail to pay when due (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise) any principal, interest or other amount payable in respect of Indebtedness (excluding Indebtedness evidenced
by this Agreement) having an aggregate amount outstanding in excess of $500,000, and such failure shall continue after the applicable
grace period, if any, specified in the agreement or instrument relating to such Indebtedness, or any other default under any agreement
or instrument relating to any such Indebtedness, or any other event, shall occur and shall continue after the applicable grace
period, if any, specified in such agreement or instrument, if the effect of such default or event is to accelerate, or to permit
the acceleration of, the maturity of such Indebtedness; or any such Indebtedness shall be declared to be due and payable, or required
to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased or an offer to prepay,
redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof;
(f)
the Parent or any of its Subsidiaries (i) shall institute any proceeding or voluntary case seeking to adjudicate it a bankrupt
or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or
composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking
the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for any such Person
or for any substantial part of its property, (ii) shall be generally not paying its debts as such debts become due or shall admit
in writing its inability to pay its debts generally, (iii) shall make a general assignment for the benefit of creditors, or (iv)
shall take any action to authorize or effect any of the actions set forth above in this subsection (f);
(g)
any proceeding shall be instituted against the Parent or any of its Subsidiaries seeking to adjudicate it a bankrupt or insolvent,
or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking
the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for any such Person
or for any substantial part of its property, and either such proceeding shall remain undismissed or unstayed for a period of 30
days or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against
any such Person or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part
of its property) shall occur;
(h)
any material provision of any Loan Document shall at any time for any reason (other than pursuant to the express terms thereof)
cease to be valid and binding on or enforceable against any Loan Party intended to be a party thereto, or the validity or enforceability
thereof shall be contested by any party thereto, or a proceeding shall be commenced by any Loan Party or any Governmental Authority
having jurisdiction over any of them, seeking to establish the invalidity or unenforceability thereof, or any Loan Party shall
deny in writing that it has any liability or obligation purported to be created under any Loan Document;
(i)
any Security Agreement, any Mortgage or any other security document, after delivery thereof pursuant hereto, shall for any reason
fail or cease to create a valid and perfected and, except to the extent permitted by the terms hereof or thereof, first priority
Lien in favor of the Collateral Agent for the benefit of the Agents and the Lenders on any Collateral purported to be covered
thereby;
(j)
one or more judgments, orders or awards (or any settlement of any litigation or other proceeding that, if breached, could result
in a judgment, order or award) for the payment of money exceeding $500,000 in the aggregate (except to the extent fully covered
(other than to the extent of customary deductibles) by insurance pursuant to which the insurer has been notified and has not denied
coverage) shall be rendered against the Parent or any of its Subsidiaries and remain unsatisfied and (i) enforcement proceedings
shall have been commenced by any creditor upon any such judgment, order, award or settlement or (ii) there shall be a period of
10 consecutive days after entry thereof during which (A) a stay of enforcement thereof is not be in effect or (B) the same is
not vacated, discharged, stayed or bonded pending appeal;
(k)
the Parent or any of its Subsidiaries is enjoined, restrained or in any way prevented by the order of any court or any Governmental
Authority from conducting, or otherwise ceases to conduct for any reason whatsoever, all or any material part of its business
for more than 3 days (which shall be extended for up to 10 days, if capable of being remedied, to the extent the Parent or such
Subsidiary is diligently pursuing a remedy for such failure);
(l)
any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor
dispute, embargo, condemnation, act of God or public enemy, or other casualty which causes, for more than 15 consecutive days,
the cessation or substantial curtailment of revenue producing activities at any Facility of any Loan Party, if any such event
or circumstance could reasonably be expected to have a Material Adverse Effect;
(m)
the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Parent
or any of its Subsidiaries, if such loss, suspension, revocation or failure to renew could reasonably be expected to have a Material
Adverse Effect;
(n)
the indictment of the Parent or any of its Subsidiaries or any senior officer thereof under any criminal statute, or commencement
of criminal or civil proceedings against the Parent or any of its Subsidiaries or any senior officer thereof, pursuant to which
statute or proceedings the penalties or remedies sought or available include forfeiture to any Governmental Authority of any material
portion of the property of such Person;
(o)
any Loan Party or any of its ERISA Affiliates shall have made a complete or partial withdrawal from a Multiemployer Plan, and,
as a result of such complete or partial withdrawal, any Loan Party or any of its ERISA Affiliates incurs a withdrawal liability
in an annual amount exceeding $500,000; or a Multiemployer Plan enters reorganization status under Section 4241 of ERISA, and,
as a result thereof any Loan Party’s or any of its ERISA Affiliates’ annual contribution requirements with respect
to such Multiemployer Plan increases in an annual amount exceeding $500,000;
(p)
any Termination Event with respect to any Employee Plan shall have occurred, and, 30 days after notice thereof shall have been
given to any Loan Party by any Agent, (i) such Termination Event (if correctable) shall not have been corrected, and (ii) the
then current value of such Employee Plan’s vested benefits exceeds the then current value of assets allocable to such benefits
in such Employee Plan by more than $500,000 (or, in the case of a Termination Event involving liability under Section 409, 502(i),
502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 4971 or 4975 of the Internal Revenue Code, the liability
is in excess of such amount);
(q)
(i) there shall occur and be continuing any “Event of Default” (or any comparable term) under, and as defined in the
documents evidencing or governing any subordinated Indebtedness, (ii) any of the Obligations for any reason shall cease to be
“Senior Indebtedness” or “Designated Senior Indebtedness” (or any comparable terms) under, and as defined
in the documents evidencing or governing any subordinated Indebtedness, (iii) any Indebtedness other than the Obligations shall
constitute “Designated Senior Indebtedness” (or any comparable term) under, and as defined in, the documents evidencing
or governing any subordinated Indebtedness, (iv) any holder of subordinated Indebtedness shall fail to perform or comply with
any of the subordination provisions of the documents evidencing or governing such subordinated Indebtedness, or (v) the subordination
provisions of the documents evidencing or governing any subordinated Indebtedness shall, in whole or in part, terminate, cease
to be effective or cease to be legally valid, binding and enforceable against any holder of the applicable subordinated Indebtedness;
(r)
(i) the Loan Parties, taken as a whole, shall fail to maintain sufficient mine bonding capacity to be able to conduct their operations
substantially as contemplated by the mining plans used in preparing the Projections, or (ii) the Loan Parties shall default, in
any material manner, in the compliance with or the performance of its surety bonding agreements and obligations (including any
default in the payment of outstanding reimbursement claims owing in connection with any of the bonds outstanding) and such default
would materially adversely affect the Loan Parties’, taken as a whole, ability to conduct their operations substantially
as contemplated by the mining plans used in preparing the Projections;
(s)
any independent expert measurement (including a fly over survey or ground survey) of the Loan Parties’ Inventory shows a
discrepancy in excess of 20% from the Inventory reported by the Loan Parties to the Agents;
(t)
a Change of Control shall have occurred; or
(u)
an event or development occurs which could reasonably be expected to have a Material Adverse Effect;
then,
and in any such event, the Collateral Agent shall, at the request of the Required Lenders, by notice to the Administrative Borrower,
(i) terminate or reduce all Commitments, whereupon all Commitments shall immediately be so terminated or reduced, (ii) declare
all or any portion of the Loans then outstanding to be accelerated and due and payable, whereupon all or such portion of the aggregate
principal of all Loans, all accrued and unpaid interest thereon, all fees and all other amounts payable under this Agreement and
the other Loan Documents shall become due and payable immediately, together with the payment of the Applicable Premium with respect
to the Commitments so terminated and the Loans so repaid, without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by each Loan Party and (iii) exercise any and all of its other rights and remedies under
applicable law, hereunder and under the other Loan Documents; provided, however, that upon the occurrence of any
Event of Default described in subsection (f) or (g) of this Section 9.01 with respect to any Loan Party, without any notice to
any Loan Party or any other Person or any act by any Agent or any Lender, all Commitments shall automatically terminate and all
Loans then outstanding, together with all accrued and unpaid interest thereon, all fees and all other amounts due under this Agreement
and the other Loan Documents, including, without limitation, the Applicable Premium, shall be accelerated and become due and payable
automatically and immediately, without presentment, demand, protest or notice of any kind, all of which are expressly waived by
each Loan Party.
ARTICLE
X
AGENTS
Section
10.01 Appointment. Each Lender (and each subsequent maker of any Loan by its making thereof) hereby irrevocably appoints,
authorizes and empowers CB Agent Services LLC as the Origination Agent and Cortland as the Administrative Agent and the Collateral
Agent to perform the duties of each such Agent as set forth in this Agreement and the other Loan Documents, together with such
actions and powers as are reasonably incidental thereto, including: (i) to receive on behalf of each Lender any payment of principal
of or interest on the Loans outstanding hereunder and all other amounts accrued hereunder for the account of the Lenders and paid
to such Agent, and, subject to Section 2.04 of this Agreement, to distribute promptly to each Lender its Pro Rata Share of all
payments so received; (ii) to distribute to each Lender copies of all material notices and agreements received by such Agent and
not required to be delivered to each Lender pursuant to the terms of this Agreement, provided that the Agents shall not have any
liability to the Lenders for any Agent’s inadvertent failure to distribute any such notices or agreements to the Lenders;
(iii) to maintain, in accordance with its customary business practices, ledgers and records reflecting the status of the Obligations,
the Loans, and related matters and to maintain, in accordance with its customary business practices, ledgers and records reflecting
the status of the Collateral and related matters; (iv) to execute or file any and all financing or similar statements or notices,
amendments, renewals, supplements, documents, instruments, proofs of claim, notices and other written agreements with respect
to this Agreement or any other Loan Document; (v) to make the Loans and Origination Agent Advances, for such Agent or on behalf
of the applicable Lenders as provided in this Agreement or any other Loan Document; (vi) to perform, exercise, and enforce any
and all other rights and remedies of the Lenders with respect to the Loan Parties, the Obligations, or otherwise related to any
of same to the extent reasonably incidental to the exercise by such Agent of the rights and remedies specifically authorized to
be exercised by such Agent by the terms of this Agreement or any other Loan Document; (vii) to incur and pay such fees necessary
or appropriate for the performance and fulfillment of its functions and powers pursuant to this Agreement or any other Loan Document;
(viii) subject to Section 10.03, to take such action as such Agent deems appropriate on its behalf to administer the Loans and
the Loan Documents and to exercise such other powers delegated to such Agent by the terms hereof or the other Loan Documents (including,
without limitation, the power to give or to refuse to give notices, waivers, consents, approvals and instructions and the power
to make or to refuse to make determinations and calculations); and (ix) to act with respect to all Collateral under the Loan Documents,
including 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. As to any matters not expressly provided for by this Agreement and the other Loan Documents
(including, without limitation, enforcement or collection of the Loans), the Agents shall not be required to exercise any discretion
or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of 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), and such instructions of 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) shall be binding upon all Lenders and
all makers of Loans; provided, however, the Agents shall not be required to take any action which, in the reasonable
opinion of any Agent, exposes such Agent to liability or which is contrary to this Agreement or any other Loan Document or applicable
law.
Section
10.02 Nature of Duties; Delegation. (a) The Agents shall have no duties or responsibilities except those expressly set
forth in this Agreement or in the other Loan Documents. The duties of the Agents shall be mechanical and administrative in nature.
The Agents shall not have by reason of this Agreement or any other Loan Document a fiduciary relationship in respect of any Lender.
Nothing in this Agreement or any other Loan Document, express or implied, is intended to or shall be construed to impose upon
the Agents any obligations in respect of this Agreement or any other Loan Document except as expressly set forth herein or therein.
Each Lender shall make its own independent investigation of the financial condition and affairs of the Loan Parties in connection
with the making and the continuance of the Loans hereunder and shall make its own appraisal of the creditworthiness of the Loan
Parties and the value of the Collateral, and the Agents shall have no duty or responsibility, either initially or on a continuing
basis, to provide any Lender with any credit or other information with respect thereto, whether coming into their possession before
the initial Loan hereunder or at any time or times thereafter, provided that, upon the reasonable request of a Lender, each Agent
shall provide to such Lender any documents or reports delivered to such Agent by the Loan Parties pursuant to the terms of this
Agreement or any other Loan Document. If any Agent seeks the consent or approval of 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) to the taking or refraining
from taking any action hereunder, such Agent shall send notice thereof to each Lender. Each Agent shall promptly notify each Lender
any time that 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) have instructed such Agent to act or refrain from acting pursuant hereto.
(b)
Each Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and
delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent,
employee, attorney-in-fact and any other Person (including any Lender). Any such Person shall benefit from this Article X to the
extent provided by the applicable Agent.
Section
10.03 Rights, Exculpation, Etc. The Agents and their directors, officers, agents or employees shall not be liable for any
action taken or omitted to be taken by them under or in connection with this Agreement or the other Loan Documents, except for
their own gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction.
Without limiting the generality of the foregoing, no Agent shall be deemed to have knowledge of any Default or Event of Default
unless and until written notice thereof, stating that such notice is a “notice of default”, is given to such Agent
by the Borrowers or a Lender, and the Agents (i) may treat the payee of any Loan as the owner thereof until the Collateral Agent
receives written notice of the assignment or transfer thereof, pursuant to Section 12.07 hereof, signed by such payee and in form
satisfactory to the Origination Agent; (ii) may consult with legal counsel (including, without limitation, counsel to any Agent
or counsel to the Loan Parties), independent public accountants, and other experts selected by any of them and shall not be liable
for any action taken or omitted to be taken in good faith by any of them in accordance with the advice of such counsel or experts;
(iii) make no warranty or representation to any Lender and shall not be responsible to any Lender for any statements, certificates,
warranties or representations made in or in connection with this Agreement or the other Loan Documents; (iv) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement
or the other Loan Documents on the part of any Person, the existence or possible existence of any Default or Event of Default,
or to inspect the Collateral or other property (including, without limitation, the books and records) of any Person; (v) shall
not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement or the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto; and (vi)
shall not be deemed to have made any representation or warranty regarding the existence, value or collectibility of the Collateral,
the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Loan Party
in connection therewith, nor shall the Agents be responsible or liable to the Lenders for any failure to monitor or maintain any
portion of the Collateral. The Agents shall not be liable for any apportionment or distribution of payments made in good faith
pursuant to Section 4.03, and if any such apportionment or distribution is subsequently determined to have been made in error,
and the sole recourse of any Lender to whom payment was due but not made shall be to recover from other Lenders any payment in
excess of the amount which they are determined to be entitled. The Agents may at any time request instructions from the Lenders
with respect to any actions or approvals which by the terms of this Agreement or of any of the other Loan Documents the Agents
are permitted or required to take or to grant, and if such instructions are requested, the Agents shall be absolutely entitled
to refrain from taking any action or to withhold any approval under any of the Loan Documents until they shall have received such
instructions from the Required Lenders, and if it so requests, it shall first be indemnified to its satisfaction by the Secured
Parties against any and all liability and expense which may be incurred by it by reason of taking, continuing or refraining from
taking any such action. Notwithstanding the foregoing, the Agents shall not be required to take, or to refrain from taking, any
action that is, in the opinion of such Agent or its counsel, contrary to any Loan Document or applicable Requirements of Law.
Neither the Administrative Agent nor the Collateral Agent shall be liable for any action taken or refrained to be taken by it
with the consent or at the request of the Origination Agent or the Required Lenders. Without limiting the foregoing, no Lender
shall have any right of action whatsoever against any Agent as a result of such Agent acting or refraining from acting under this
Agreement or any of the other Loan Documents in accordance with the instructions of 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).
Section
10.04 Reliance. Each Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other
documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made
by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Loan Documents and its
duties hereunder or thereunder, upon advice of counsel selected by it.
Section
10.05 Indemnification. To the extent that any Agent is not reimbursed and indemnified by any Loan Party, and whether or
not such Agent has made demand on any Loan Party for the same, the Lenders will, within five days of written demand by such Agent,
reimburse such Agent for and indemnify such Agent from and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses (including, without limitation, client charges and expenses of counsel or any other
advisor to such Agent), advances or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted
against such Agent in any way relating to or arising out of this Agreement or any of the other Loan Documents or any action taken
or omitted by such Agent under this Agreement or any of the other Loan Documents, in proportion to each Lender’s Pro Rata
Share, including, without limitation, advances and disbursements made pursuant to Section 10.08; provided, however,
that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses, advances or disbursements for which there has been a final non-appealable judicial determination that
such liability resulted from such Agent’s gross negligence or willful misconduct. The obligations of the Lenders under this
Section 10.05 shall survive the payment in full of the Loans and the termination of this Agreement.
Section
10.06 Agents Individually. With respect to its Pro Rata Share of the Total Term Loan Commitment hereunder and the Loans
made by it, each Agent shall have and may exercise the same rights and powers hereunder and is subject to the same obligations
and liabilities as and to the extent set forth herein for any other Lender or maker of a Loan. The terms “Lenders”
or “Required Lenders” or any similar terms shall, unless the context clearly otherwise indicates, include each Agent
in its individual capacity as a Lender or one of the Required Lenders. Each Agent and its Affiliates may accept deposits from,
lend money to, and generally engage in any kind of banking, trust or other business with any Borrower as if it were not acting
as an Agent pursuant hereto without any duty to account to the other Lenders.
Section
10.07 Successor Agent. (a) Any Agent may at any time give at least 30 days prior written notice of its resignation to the
Lenders and the Administrative Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right
to appoint a successor Agent. If no such successor Agent shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Agent gives notice of its resignation (or such earlier day as shall be agreed
by the Required Lenders) (the “Resignation Effective Date”), then the retiring Agent may (but shall not be
obligated to), on behalf of the Lenders, appoint a successor Agent. Whether or not a successor Agent has been appointed, such
resignation shall become effective in accordance with such notice on the Resignation Effective Date.
(b)
With effect from the Resignation Effective Date, (i) the retiring Agent shall be discharged from its duties and obligations hereunder
and under the other Loan Documents (except that in the case of any Collateral held by such Agent on behalf of the Lenders under
any of the Loan Documents, the retiring Agent shall continue to hold such collateral security until such time as a successor Agent
is appointed) and (ii) all payments, communications and determinations provided to be made by, to or through such retiring Agent
shall instead be made by or to each Lender directly, until such time, if any, as a successor Agent shall have been appointed as
provided for above. Upon the acceptance of a successor’s Agent’s appointment as Agent hereunder, such successor shall
succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent
shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents. After the retiring Agent’s
resignation hereunder and under the other Loan Documents, the provisions of this Article, Section 12.04 and Section 12.15 shall
continue in effect for the benefit of such retiring Agent in respect of any actions taken or omitted to be taken by it while the
retiring Agent was acting as Agent.
Section
10.08 Collateral Matters.
(a)
The Origination Agent may from time to time make such disbursements and advances (“Origination Agent Advances”)
which the Origination Agent, in its sole discretion, deems necessary or desirable to preserve, protect, prepare for sale or lease
or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the amount of repayment by the Borrowers
of the Loans and other Obligations or to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement,
including, without limitation, costs, fees and expenses as described in Section 12.04. The Origination Agent Advances shall be
repayable on demand and be secured by the Collateral and shall bear interest at a rate per annum equal to the rate then applicable
to Term Loans that are Reference Rate Loans. The Origination Agent Advances shall constitute Obligations hereunder which may be
charged to the Loan Account in accordance with Section 4.01. The Origination Agent shall notify each Lender and the Administrative
Borrower in writing of each such Origination Agent Advance, which notice shall include a description of the purpose of such Origination
Agent Advance. Without limitation to its obligations pursuant to Section 10.05, each Lender agrees that it shall make available
to the Origination Agent, upon the Origination Agent’s demand, in Dollars in immediately available funds, the amount equal
to such Lender’s Pro Rata Share of each such Origination Agent Advance. If such funds are not made available to the Origination
Agent by such Lender, the Origination Agent shall be entitled to recover such funds on demand from such Lender, together with
interest thereon for each day from the date such payment was due until the date such amount is paid to the Origination Agent,
at the Federal Funds Rate for three Business Days and thereafter at the Reference Rate.
(b)
The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted
to or held by the Collateral Agent upon any Collateral upon termination of the Total Term Loan Commitment and payment and satisfaction
of all Loans and all other Obligations (other than Contingent Indemnity Obligations) in accordance with the terms hereof; or constituting
property being sold or disposed of in the ordinary course of any Loan Party’s business or otherwise in compliance with the
terms of this Agreement and the other Loan Documents; or constituting property in which the Loan Parties owned no interest at
the time the Lien was granted or at any time thereafter; or if approved, authorized or ratified in writing by the Lenders in accordance
with Section 12.02. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s
authority to release particular types or items of Collateral pursuant to this Section 10.08(b).
(c)
Without in any manner limiting the Collateral Agent’s authority to act without any specific or further authorization or
consent by the Lenders (as set forth in Section 10.08(b)), each Lender agrees to confirm in writing, upon request by the Collateral
Agent, the authority to release Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon receipt by the Collateral
Agent of confirmation from the Lenders of its authority to release any particular item or types of Collateral, and upon prior
written request by any Loan Party, the Collateral Agent shall (and is hereby irrevocably authorized by the Lenders to) execute
such documents as may be necessary to evidence the release of the Liens granted to the Collateral Agent for the benefit of the
Agents and the Lenders upon such Collateral; provided, however, that (i) the Collateral Agent shall not be required
to execute any such document on terms which, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability
or create any obligations or entail any consequence other than the release of such Liens without recourse or warranty, and (ii)
such release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or obligations of any Loan
Party in respect of) all interests in the Collateral retained by any Loan Party.
(d)
Anything contained in any of the Loan Documents to the contrary notwithstanding, the Loan Parties, each Agent and each Lender
hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral under any Loan Document
or to enforce any Guaranty, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be
exercised solely by the Collateral Agent for the benefit of the Lenders in accordance with the terms thereof, (ii) in the event
of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent,
the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and (iii) the Collateral
Agent, as agent for and representative of the Agents and the Lenders (but not any other Agent or any Lender or Lenders in its
or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled (either
directly or through one or more acquisition vehicles) for the purpose of bidding and making settlement or payment of the purchase
price for all or any portion of the Collateral to be sold (A) at any public or private sale, (B) at any sale conducted by the
Collateral Agent under the provisions of the Uniform Commercial Code (including pursuant to Sections 9-610 or 9-620 of the Uniform
Commercial Code), (C) at any sale or foreclosure conducted by the Collateral Agent (whether by judicial action or otherwise) in
accordance with applicable law or (D) any sale conducted pursuant to the provisions of any Debtor Relief Law (including Section
363 of the Bankruptcy Code), to use and apply all or any of the Obligations as a credit on account of the purchase price for any
Collateral payable by the Collateral Agent at such sale.
(e)
The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the Collateral exists or is owned by the
Loan Parties or is cared for, protected or insured or has been encumbered or that the Lien granted to the Collateral Agent pursuant
to this Agreement or any other Loan Document has been properly or sufficiently or lawfully created, perfected, protected or enforced
or is entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure
or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent
in this Section 10.08 or in any other Loan Document, it being understood and agreed that in respect of the Collateral, or any
act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion,
given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have
no duty or liability whatsoever to any other Lender, except as otherwise provided herein.
Section
10.09 Agency for Perfection. Each Agent and each Lender hereby appoints each other Agent and each other Lender as agent
and bailee for the purpose of perfecting the security interests in and liens upon the Collateral in assets which, in accordance
with Article 9 of the Uniform Commercial Code, can be perfected only by possession or control (or where the security interest
of a secured party with possession or control has priority over the security interest of another secured party) and each Agent
and each Lender hereby acknowledges that it holds possession of or otherwise controls any such Collateral for the benefit of the
Agents and the Lenders as secured party. Should the Administrative Agent or any Lender obtain possession or control of any such
Collateral, the Administrative Agent or such Lender shall notify the Collateral Agent thereof, and, promptly upon the Collateral
Agent’s request therefor shall deliver such Collateral to the Collateral Agent or in accordance with the Collateral Agent’s
instructions. In addition, the Collateral Agent shall also have the power and authority hereunder to appoint such other sub-agents
as may be necessary or required under applicable state law or otherwise to perform its duties and enforce its rights with respect
to the Collateral and under the Loan Documents. Each Loan Party by its execution and delivery of this Agreement hereby consents
to the foregoing.
Section
10.10 No Reliance on any Agent’s Customer Identification Program. Each Lender acknowledges and agrees that neither
such Lender, nor any of its Affiliates, participants or assignees, may rely on any Agent to carry out such Lender’s, Affiliate’s,
participant’s or assignee’s customer identification program, or other requirements imposed by the USA PATRIOT Act
or the regulations issued thereunder, including the regulations set forth in 31 C.F.R. §§ 1010.100(yy), (iii), 1020.100,
and 1020.220 (formerly 31 C.F.R. § 103.121), as hereafter amended or replaced (“CIP Regulations”), or any other
Anti-Terrorism Laws, including any programs involving any of the following items relating to or in connection with any of the
Loan Parties, their Affiliates or their agents, the Loan Documents or the transactions hereunder or contemplated hereby: (1) any
identity verification procedures, (2) any recordkeeping, (3) comparisons with government lists, (4) customer notices or (5) other
procedures required under the CIP Regulations or other regulations issued under the USA PATRIOT Act. Each Lender, Affiliate, participant
or assignee subject to Section 326 of the USA PATRIOT Act will perform the measures necessary to satisfy its own responsibilities
under the CIP Regulations.
Section
10.11 No Third Party Beneficiaries. The provisions of this Article are solely for the benefit of the Secured Parties, and
no Loan Party shall have rights as a third-party beneficiary of any of such provisions.
Section
10.12 No Fiduciary Relationship. It is understood and agreed that the use of the term “agent” herein or in
any other Loan Document (or any other similar term) with reference to any Agent is not intended to connote any fiduciary or other
implied (or express) obligations arising under agency doctrine of any applicable law. Instead such term is used as a matter of
market custom, and is intended to create or reflect only an administrative relationship between contracting parties.
Section
10.13 Reports; Confidentiality; Disclaimers. By becoming a party to this Agreement, each Lender:
(a)
is deemed to have requested that each Agent furnish such Lender, promptly after it becomes available, a copy of each field audit
or examination report with respect to the Parent or any of its Subsidiaries (each, a “Report”) prepared by
or at the request of such Agent, and each Agent shall so furnish each Lender with each such Report,
(b)
expressly agrees and acknowledges that the Agents (i) do not make any representation or warranty as to the accuracy of any Reports,
and (ii) shall not be liable for any information contained in any Reports,
(c)
expressly agrees and acknowledges that the Reports are not comprehensive audits or examinations, that any Agent or other party
performing any audit or examination will inspect only specific information regarding the Parent and its Subsidiaries and will
rely significantly upon the Parent’s and its Subsidiaries’ books and records, as well as on representations of their
personnel,
(d)
agrees to keep all Reports and other material, non-public information regarding the Parent and its Subsidiaries and their operations,
assets, and existing and contemplated business plans in a confidential manner in accordance with Section 12.19, and
(e)
without limiting the generality of any other indemnification provision contained in this Agreement, agrees: (i) to hold any Agent
and any other Lender preparing a Report harmless from any action the indemnifying Lender may take or fail to take or any conclusion
the indemnifying Lender may reach or draw from any Report in connection with any loans or other credit accommodations that the
indemnifying Lender has made or may make to the Borrowers, or the indemnifying Lender’s participation in, or the indemnifying
Lender’s purchase of, a loan or loans of the Borrowers, and (ii) to pay and protect, and indemnify, defend and hold any
Agent and any other Lender preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses,
and other amounts (including, attorneys fees and costs) incurred by any such Agent and any such other Lender preparing a Report
as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.
Section
10.14 Collateral Custodian (a). Upon the occurrence and during the continuance of any Default or Event of Default, the
Collateral Agent or its designee may at any time and from time to time employ and maintain on the premises of any Loan Party a
custodian selected by the Collateral Agent or its designee who shall have full authority to do all acts necessary to protect the
Agents’ and the Lenders’ interests. Each Loan Party hereby agrees to, and to cause its Subsidiaries to, cooperate
with any such custodian and to do whatever the Collateral Agent or its designee may reasonably request to preserve the Collateral.
All reasonable costs and expenses incurred by the Collateral Agent or its designee by reason of the employment of the custodian
shall be the responsibility of the Borrowers and charged to the Loan Account.
Section
10.15 Collateral Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial
proceeding relative to any Loan Party, the Collateral Agent (irrespective of whether the principal of any Loan shall then be due
and payable as herein expressed or by declaration or otherwise and irrespective of whether any Agent shall have made any demand
on the Borrowers) shall be entitled and empowered (but not obligated) 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 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 Secured Parties (including any claim for the compensation, expenses, disbursements and advances of the Secured
Parties and their respective agents and counsel and all other amounts due the Secured Parties hereunder and under the other Loan
Documents) 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 Secured Party to make such payments to the Collateral Agent and, in the event that the Collateral
Agent shall consent to the making of such payments directly to the Secured Parties, to pay to the Collateral Agent any amount
due for the reasonable compensation, expenses, disbursements and advances of the Collateral Agent and its agents and counsel,
and any other amounts due the Collateral Agent hereunder and under the other Loan Documents.
Section
10.16 Origination Agent as Advisor. Each Lender acknowledges that certain affiliates of Colbeck Capital Management, LLC
(“Colbeck”) now are and may hereafter be advisors to the Parent and its Subsidiaries (the “Affiliated
Advisors”), and the Affiliated Advisors may exercise their rights as advisors to the Loan Parties, in each case as though
affiliates of Colbeck were not the Origination Agent or Lenders hereunder and without accounting to, or incurring any liability
to, the Lenders as a result thereof. Notwithstanding the role of advisors to the Parent and its Subsidiaries, Colbeck and any
funds or accounts managed by any Affiliate of Colbeck that are Lenders (collectively, “Colbeck Lenders”) shall
have the same rights and powers hereunder as any Lender with respect to their Commitments, the Loans made by the Colbeck Lenders
and the other obligations owing hereunder to the Colbeck Lenders, and the Colbeck Lenders may exercise the same rights and powers
as if such Affiliated Advisors were not advisors to the Parent and its Subsidiaries. Colbeck’s affiliates are executing
this Agreement solely in their capacities as Origination Agent and Lender and shall have no duties or responsibilities to the
Lenders or any fiduciary responsibility to the Lenders, and no express or implied covenants, functions, responsibilities, duties,
obligations or liabilities (for the performance by any Loan Party hereunder or otherwise) shall be read into this Agreement or
any other Loan Document or exist against Colbeck or any Colbeck Lender, by reason of the Affiliated Advisors’ role as advisors
to the Parent and its Subsidiaries. It is understood and agreed that Colbeck, its Related Funds and Affiliates (including, without
limitation, the Origination Agent) may receive fees, Equity Interests and other compensation in connection with the arrangement
of this Agreement and related transactions that other Lenders are not receiving, and Colbeck, its Related Funds and Affiliates
shall have no obligation to share such fees, Equity Interests and other compensation or account for such amounts and will not
assume any additional duties or obligations to the Lenders by reason of the foregoing.
Section
10.17 Reserves. The Origination Agent shall have the right (but not the obligation), in the exercise of its reasonable
business judgment, to establish and decrease reserves against the Collateral Coverage Amount. The amount of any reserve established
by the Origination Agent shall have a reasonable relationship to the event, condition, other circumstance, or fact that is the
basis for such reserve and shall not be duplicative of any other reserve or ineligibility criteria established and currently maintained.
ARTICLE
XI
GUARANTY
Section
11.01 Guaranty. Each Guarantor hereby jointly and severally and unconditionally and irrevocably guarantees the punctual
payment when due, whether at stated maturity, by acceleration or otherwise, of all Obligations of the Borrowers now or hereafter
existing under any Loan Document, whether for principal, interest (including, without limitation, all interest that accrues after
the commencement of any Insolvency Proceeding of any Borrower, whether or not a claim for post-filing interest is allowed in such
Insolvency Proceeding), fees, commissions, expense reimbursements, indemnifications or otherwise (such obligations, to the extent
not paid by the Borrowers, being the “Guaranteed Obligations”), and agrees to pay any and all expenses (including
reasonable counsel fees and expenses) incurred by the Secured Parties in enforcing any rights under the guaranty set forth in
this Article XI. Without limiting the generality of the foregoing, each Guarantor’s liability shall extend to all amounts
that constitute part of the Guaranteed Obligations and would be owed by the Borrowers to the Secured Parties under any Loan Document
but for the fact that they are unenforceable or not allowable due to the existence of an Insolvency Proceeding involving any Borrower.
Section
11.02 Guaranty Absolute. Each Guarantor jointly and severally guarantees that the Guaranteed Obligations will be paid strictly
in accordance with the terms of the Loan Documents, regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the Secured Parties with respect thereto. Each Guarantor agrees that
this Article XI constitutes a guaranty of payment when due and not of collection and waives any right to require that any resort
be made by any Agent or any Lender to any Collateral. The obligations of each Guarantor under this Article XI are independent
of the Guaranteed Obligations, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce
such obligations, irrespective of whether any action is brought against any Loan Party or whether any Loan Party is joined in
any such action or actions. The liability of each Guarantor under this Article XI shall be irrevocable, absolute and unconditional
irrespective of, and each Guarantor hereby irrevocably waives any defenses it may now or hereafter have in any way relating to,
any or all of the following:
(a)
any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto;
(b)
any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations, or any
other amendment or waiver of or any consent to departure from any Loan Document, including, without limitation, any increase in
the Guaranteed Obligations resulting from the extension of additional credit to any Loan Party or otherwise;
(c)
any taking, exchange, release or non-perfection of any Collateral, or any taking, release or amendment or waiver of or consent
to departure from any other guaranty, for all or any of the Guaranteed Obligations;
(d)
the existence of any claim, set-off, defense or other right that any Guarantor may have at any time against any Person, including,
without limitation, any Secured Party;
(e)
any change, restructuring or termination of the corporate, limited liability company or partnership structure or existence of
any Loan Party; or
(f)
any other circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any representation
by the Secured Parties that might otherwise constitute a defense available to, or a discharge of, any Loan Party or any other
guarantor or surety.
This
Article XI shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed
Obligations is rescinded or must otherwise be returned by Secured Parties or any other Person upon the insolvency, bankruptcy
or reorganization of any Borrower or otherwise, all as though such payment had not been made.
Section
11.03 Waiver. Each Guarantor hereby waives (i) promptness and diligence, (ii) notice of acceptance and any other notice
with respect to any of the Guaranteed Obligations and this Article XI and any requirement that the Secured Parties exhaust any
right or take any action against any Loan Party or any other Person or any Collateral, (iii) any right to compel or direct any
Secured Party to seek payment or recovery of any amounts owed under this Article XI from any one particular fund or source or
to exhaust any right or take any action against any other Loan Party, any other Person or any Collateral, (iv) any requirement
that any Secured Party protect, secure, perfect or insure any security interest or Lien on any property subject thereto or exhaust
any right to take any action against any Loan Party, any other Person or any Collateral, and (v) any other defense available to
any Guarantor. Each Guarantor agrees that the Secured Parties shall have no obligation to marshal any assets in favor of any Guarantor
or against, or in payment of, any or all of the Obligations. Each Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated herein and that the waiver set forth in this Section 11.03 is knowingly
made in contemplation of such benefits. Each Guarantor hereby waives any right to revoke this Article XI, and acknowledges that
this Article XI is continuing in nature and applies to all Guaranteed Obligations, whether existing now or in the future.
Section
11.04 Continuing Guaranty; Assignments. This Article XI is a continuing guaranty and shall (a) remain in full force and
effect until the later of the cash payment in full of the Guaranteed Obligations (other than Contingent Indemnity Obligations)
and all other amounts payable under this Article XI and the Final Maturity Date, (b) be binding upon each Guarantor, its successors
and assigns and (c) inure to the benefit of and be enforceable by the Secured Parties and their successors, pledgees, transferees
and assigns. Without limiting the generality of the foregoing clause (c), any Lender may pledge, assign or otherwise transfer
all or any portion of its rights and obligations under this Agreement (including, without limitation, all or any portion of its
Commitments and its Loans owing to it) to any other Person, and such other Person shall thereupon become vested with all the benefits
in respect thereof granted such Lender herein or otherwise, in each case as provided in Section 12.07.
Section
11.05 Subrogation. No Guarantor will exercise any rights that it may now or hereafter acquire against any Loan Party or
any other guarantor that arise from the existence, payment, performance or enforcement of such Guarantor’s obligations under
this Article XI, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification
and any right to participate in any claim or remedy of the Secured Parties against any Loan Party or any other guarantor or any
Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without
limitation, the right to take or receive from any Loan Party or any other guarantor, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security solely on account of such claim, remedy or right, unless and
until all of the Guaranteed Obligations (other than Contingent Indemnity Obligations) and all other amounts payable under this
Article XI shall have been paid in full in cash and the Final Maturity Date shall have occurred. If any amount shall be paid to
any Guarantor in violation of the immediately preceding sentence at any time prior to the later of the payment in full in cash
of the Guaranteed Obligations (other than Contingent Indemnity Obligations) and all other amounts payable under this Article XI
and the Final Maturity Date, such amount shall be held in trust for the benefit of the Secured Parties and shall forthwith be
paid to the Secured Parties to be credited and applied to the Guaranteed Obligations and all other amounts payable under this
Article XI, whether matured or unmatured, in accordance with the terms of this Agreement, or to be held as Collateral for any
Guaranteed Obligations or other amounts payable under this Article XI thereafter arising. If (i) any Guarantor shall make payment
to the Secured Parties of all or any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other
amounts payable under this Article XI shall be paid in full in cash and (iii) the Final Maturity Date shall have occurred, the
Secured Parties will, at such Guarantor’s request and expense, execute and deliver to such Guarantor appropriate documents,
without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor of
an interest in the Guaranteed Obligations resulting from such payment by such Guarantor.
Section
11.06 Contribution. All Guarantors desire to allocate among themselves, in a fair and equitable manner, their obligations
arising under this Guaranty. Accordingly, in the event any payment or distribution is made on any date by a Guarantor under this
Guaranty such that its Aggregate Payments exceeds its Fair Share as of such date, such Guarantor shall be entitled to a contribution
from each of the other Guarantors in an amount sufficient to cause each Guarantor’s Aggregate Payments to equal its Fair
Share as of such date. “Fair Share” means, with respect to any Guarantor as of any date of determination, an
amount equal to (a) the ratio of (i) the Fair Share Contribution Amount with respect to such Guarantor, to (ii) the aggregate
of the Fair Share Contribution Amounts with respect to all Guarantors multiplied by, (b) the aggregate amount paid or distributed
on or before such date by all Guarantors under this Guaranty in respect of the Guaranteed Obligations. “Fair Share Contribution
Amount” means, with respect to any Guarantor as of any date of determination, the maximum aggregate amount of the obligations
of such Guarantor under this Guaranty that would not render its obligations hereunder subject to avoidance as a fraudulent transfer
or conveyance under Section 548 of Title 11 of the United States Code or any comparable applicable provisions of state law; provided,
solely for purposes of calculating the “Fair Share Contribution Amount” with respect to any Guarantor for purposes
of this Section 11.06, any assets or liabilities of such Guarantor arising by virtue of any rights to subrogation, reimbursement
or indemnification or any rights to or obligations of contribution hereunder shall not be considered as assets or liabilities
of such Guarantor. “Aggregate Payments” means, with respect to any Guarantor as of any date of determination,
an amount equal to (A) the aggregate amount of all payments and distributions made on or before such date by such Guarantor in
respect of this Guaranty (including, without limitation, in respect of this Section 11.06), minus (B) the aggregate amount
of all payments received on or before such date by such Guarantor from the other Guarantors as contributions under this Section
11.06. The amounts payable as contributions hereunder shall be determined as of the date on which the related payment or distribution
is made by the applicable Guarantor. The allocation among Guarantors of their obligations as set forth in this Section 11.06 shall
not be construed in any way to limit the liability of any Guarantor hereunder. Each Guarantor is a third party beneficiary to
the contribution agreement set forth in this Section 11.06.
ARTICLE
XII
MISCELLANEOUS
Section
12.01 Notices, Etc.
(a)
Notices Generally. All notices and other communications provided for hereunder shall be in writing and shall be delivered
by hand, sent by registered or certified mail (postage prepaid, return receipt requested), overnight courier, or telecopier. In
the case of notices or other communications to any Loan Party, Origination Agent, Administrative Agent or the Collateral Agent,
as the case may be, they shall be sent to the respective address set forth below (or, as to each party, at such other address
as shall be designated by such party in a written notice to the other parties complying as to delivery with the terms of this
Section 12.01):
Rhino
Resource Partners LP
424 Lewis Hargett Circle, Suite 250
Lexington, Kentucky 40503
Attention: Chief Executive Officer
Telephone: (859) 389-6500
Telecopier:
(859) 389-6588
Email:
rboone@rhinolp.com
with
a copy to:
Rhino
Resource Partners LP
424 Lewis Hargett Circle, Suite 250
Lexington, Kentucky 40503
Attention: Whitney Kegley, General Counsel
Telephone: (859) 519-3607
Telecopier:
(859) 389-6588
Email:
wkegley@rhinolp.com
and
Frost
Brown Todd LLC
Lexington Financial Center
250
West Main Street, Suite 2800
Lexington,
Kentucky 40507
Attention: Warren J. Hoffmann, Esq.
Telephone: (859) 244-3220
Telecopier: (859) 231-0011
Email:
whoffmann@fbtlaw.com
if
to the Administrative Agent and/or the Collateral Agent, to it at the following address:
Cortland
Capital Market Services LLC
225 W. Washington St., 9th Floor
Chicago, Illinois 60606
Attention: Legal Department and Jeffrey Vaughn
Telephone: (312) 564-5080
Telecopier: (312) 376-0751
Email:
legal@cortlandglobal.com and
Jeffrey.vaughn@cortlandglobal.com
in
each case, with a copy to:
Holland
& Knight LLP
131 S. Dearborn St, 30th Floor
Chicago, Illinois 60603
Attention: Joshua M. Spencer
Telecopier: (312) 578-6666
Email:
joshua.spencer@hklaw.com
if
to the Origination Agent, to it at the following address:
CB
Agent Services LLC
c/o Colbeck Capital Management, LLC
888 Seventh Avenue, 29th Floor
New
York, New York 10106
Attention: Chief Operating Officer
Telephone: 212-603-2800
Telecopier: 212-603-2801
Email: mbeyda@colbeck.com
with
a copy to:
Schulte
Roth & Zabel LLP
919 Third Avenue
New York, New York 10022
Attention: Marc B. Friess, Esq.
Telephone: 212-756-2000
Telecopier: 212-593-5955
Email:
marc.friess@srz.com
All
notices or other communications sent in accordance with this Section 12.01, shall be deemed received on the earlier of the date
of actual receipt or 3 Business Days after the deposit thereof in the mail; provided, that (i) notices sent by overnight
courier service shall be deemed to have been given when received and (ii) notices by facsimile 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), provided, further that notices to any Agent pursuant
to Article II shall not be effective until received by such Agent.
(b)
Electronic Communications.
(i)
Each Agent and the Administrative 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. Notices and other communications to the Lenders hereunder may be delivered or furnished
by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Agents,
provided that the foregoing shall not apply to notices to any Lender pursuant to Article II if such Lender has notified
the Agents that it is incapable of receiving notices under such Article by electronic communication.
(ii)
Unless the Administrative Agent otherwise prescribes, (A) notices and other communications sent 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), and (B) 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 (A), of notification that such notice or communication is available and identifying
the website address therefor; provided that, for both clauses (A) and (B) above, if such notice, email 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.
Section
12.02 Amendments, Etc. (a) No amendment or waiver of any provision of this Agreement or any other Loan Document (excluding
the Fee Letter), and no consent to any departure by any Loan Party therefrom, shall in any event be effective unless the same
shall be in writing and signed (with a fully-executed copy delivered to the Administrative Agent) (x) in the case of an amendment,
consent or waiver to cure any ambiguity, omission, defect or inconsistency or granting a new Lien for the benefit of the Agents
and the Lenders or extending an existing Lien over additional property, by the Agents and the Borrowers (or by the Administrative
Borrower on behalf of the Borrowers), (y) in the case of any other waiver or consent, by the Required Lenders (or by the Administrative
Agent with the consent of the Required Lenders) and (z) in the case of any other amendment, by the Required Lenders (or by the
Administrative Agent with the consent of the Required Lenders) and the Borrowers (or by the Administrative Borrower on behalf
of the Borrowers), and then such waiver or consent shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall:
(i)
increase the Commitment of any Lender, reduce the principal of, or interest on, the Loans payable to any Lender, reduce the amount
of any fee payable for the account of any Lender, or postpone or extend any scheduled date fixed for any payment of principal
of, or interest or fees on, the Loans payable to any Lender, in each case, without the written consent of such Lender;
(ii)
change the percentage of the Commitments or of the aggregate unpaid principal amount of the Loans that is required for the Lenders
or any of them to take any action hereunder without the written consent of each Lender;
(iii)
amend the definition of “Required Lenders” or “Pro Rata Share” without the written consent of each Lender;
(iv)
release all or a substantial portion of the Collateral (except as otherwise provided in this Agreement and the other Loan Documents),
subordinate any Lien granted in favor of the Collateral Agent for the benefit of the Agents and the Lenders, or release any Borrower
or any Guarantor (except in connection with a Disposition of the Equity Interests thereof permitted by Section 7.02(c)(ii)), in
each case, without the written consent of each Lender;
(v)
amend, modify or waive Section 4.02, Section 4.03 or this Section 12.02 of this Agreement without the written consent of each
Lender;
(vi)
amend the definition of “Delayed Draw Pro Rata Share” without the written consent of any Lender affected thereby;
or
(vii)
amend the definition of “Applicable Collateral Coverage Limit”, “Applicable Depreciation Percentage”,
“Book Value”, “Collateral Coverage Amount”, “Depreciation Amount”, “Eligible Accounts”,
“Eligible Above Ground Equipment”, “Eligible Below Ground Equipment”, “Eligible Securities”,
“Eligible Inventory”, “Eligible Production Plant Components”, Eligible Real Property” or “Net
Amount of Eligible Accounts”, in each case, without the written consent of each Lender.
Notwithstanding
the foregoing, (A) no amendment, waiver or consent shall, unless in writing and signed by an Agent, affect the rights or duties
of such Agent (but not in its capacity as a Lender) under this Agreement or the other Loan Documents, (B) any amendment, waiver
or consent to any provision of this Agreement (including Sections 4.01 and 4.02) that permits any Loan Party, any Permitted Holder
(or other equity holder of the Parent) or any of their respective Affiliates to purchase Loans on a non-pro rata basis, become
an eligible assignee pursuant to Section 12.07 and/or make offers to make optional prepayments on a non-pro rata basis shall require
the prior written consent of the Required Lenders rather than the prior written consent of each Lender directly affected thereby
and (C) the consent of the Borrowers shall not be required to change any order of priority set forth in Section 2.05(d) and Section
4.03. Notwithstanding anything to the contrary herein, no Defaulting Lender that is a Lender shall have any right to approve or
disapprove any amendment, waiver or consent under the Loan Documents and any Loans held by such Person for purposes hereof shall
be automatically deemed to be voted pro rata according to the Loans of all other Lenders in the aggregate (other than such Defaulting
Lender).
(b)
If any action to be taken by the Lenders hereunder requires the consent, authorization, or agreement of all of the Lenders or
any Lender affected thereby, and a Lender other than the Origination Agent and its Affiliates and Related Funds (the “Holdout
Lender”) fails to give its consent, authorization, or agreement, then the Origination Agent, upon at least 5 Business
Days prior irrevocable notice to the Holdout Lender, may permanently replace the Holdout Lender with one or more substitute lenders
(each, a “Replacement Lender”), and the Holdout Lender shall have no right to refuse to be replaced hereunder.
Such notice to replace the Holdout Lender shall specify an effective date for such replacement, which date shall not be later
than 15 Business Days after the date such notice is given. Prior to the effective date of such replacement, the Holdout Lender
and each Replacement Lender shall execute and deliver an Assignment and Acceptance, subject only to the Holdout Lender being repaid
its share of the outstanding Obligations without any premium or penalty of any kind whatsoever. If the Holdout Lender shall refuse
or fail to execute and deliver any such Assignment and Acceptance prior to the effective date of such replacement, the Holdout
Lender shall be deemed to have executed and delivered such Assignment and Acceptance. The replacement of any Holdout Lender shall
be made in accordance with the terms of Section 12.07. Until such time as the Replacement Lenders shall have acquired all of the
Obligations, the Commitments, and the other rights and obligations of the Holdout Lender hereunder and under the other Loan Documents,
the Holdout Lender shall remain obligated to make its Pro Rata Share of Loans.
Section
12.03 No Waiver; Remedies, Etc. No failure on the part of any Agent or any Lender to exercise, and no delay in exercising,
any right hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise
of any right under any Loan Document preclude any other or further exercise thereof or the exercise of any other right. The rights
and remedies of the Agents and the Lenders provided herein and in the other Loan Documents are cumulative and are in addition
to, and not exclusive of, any rights or remedies provided by law. The rights of the Agents and the Lenders under any Loan Document
against any party thereto are not conditional or contingent on any attempt by the Agents and the Lenders to exercise any of their
rights under any other Loan Document against such party or against any other Person.
Section
12.04 Expenses; Taxes; Attorneys’ Fees. The Borrowers will pay on demand, all costs and expenses incurred by or on
behalf of each Agent (and, in the case of clauses (b) through (n) below, each Lender), regardless of whether the transactions
contemplated hereby are consummated, including, without limitation, reasonable fees, costs, client charges and expenses of counsel
for each Agent (and, in the case of clauses (b) through (n) below, each Lender), accounting, due diligence, periodic field audits,
physical counts, valuations, investigations, searches and filings, monitoring of assets, appraisals of Collateral, the rating
of the Loans, title searches and reviewing environmental assessments, miscellaneous disbursements, examination, travel, lodging
and meals, arising from or relating to: (a) the negotiation, preparation, execution, delivery, performance and administration
of this Agreement and the other Loan Documents (including, without limitation, the preparation of any additional Loan Documents
pursuant to Section 7.01(b) or the review of any of the agreements, instruments and documents referred to in Section 7.01(f)),
(b) any amendments, waivers or consents to this Agreement or the other Loan Documents whether or not such documents become effective
or are given, (c) the preservation and protection of the Agents’ or any of the Lenders’ rights under this Agreement
or the other Loan Documents, (d) the defense of any claim or action asserted or brought against any Agent or any Lender by any
Person that arises from or relates to this Agreement, any other Loan Document, the Agents’ or the Lenders’ claims
against any Loan Party, or any and all matters in connection therewith, (e) the commencement or defense of, or intervention in,
any court proceeding arising from or related to this Agreement or any other Loan Document, (f) the filing of any petition, complaint,
answer, motion or other pleading by any Agent or any Lender, or the taking of any action in respect of the Collateral or other
security, in connection with this Agreement or any other Loan Document, (g) the protection, collection, lease, sale, taking possession
of or liquidation of, any Collateral or other security in connection with this Agreement or any other Loan Document, (h) any attempt
to enforce any Lien or security interest in any Collateral or other security in connection with this Agreement or any other Loan
Document, (i) any attempt to collect from any Loan Party, (j) any Environmental Claim, Environmental Liability or Remedial Action
arising from or in connection with the past, present or future operations of, or any property currently, formerly or in the future
owned, leased or operated by, any Loan Party, any of its Subsidiaries or any predecessor in interest, (k) any Environmental Lien,
(l) the rating of the Loans by one or more rating agencies in connection with any Lender’s Securitization, or (m) the receipt
by any Agent or any Lender of any advice from professionals with respect to any of the foregoing. Without limitation of the foregoing
or any other provision of any Loan Document: (x) the Borrowers agree to pay all broker fees that may become due in connection
with the transactions contemplated by this Agreement and the other Loan Documents and (y) if the Borrowers fail to perform any
covenant or agreement contained herein or in any other Loan Document, any Agent may itself perform or cause performance of such
covenant or agreement, and the expenses of such Agent incurred in connection therewith shall be reimbursed on demand by the Borrowers.
The obligations of the Borrowers under this Section 12.04 shall survive the repayment of the Obligations and discharge of any
Liens granted under the Loan Documents.
Section
12.05 Right of Set-off. Upon the occurrence and during the continuance of any Event of Default, any Agent or any Lender
may, and is hereby authorized to, at any time and from time to time, without notice to any Loan Party (any such notice being expressly
waived by the Loan Parties) and to the fullest extent permitted by law, set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other Indebtedness at any time owing by such Agent or such Lender or
any of their respective Affiliates to or for the credit or the account of any Loan Party against any and all obligations of the
Loan Parties either now or hereafter existing under any Loan Document, irrespective of whether or not such Agent or such Lender
shall have made any demand hereunder or thereunder and although such obligations may be contingent or unmatured; provided
that in the event that any Defaulting Lender shall exercise any such right of set-off, (a) all amounts so set off shall be paid
over immediately to the Administrative Agent for further application in accordance with the provisions of Section 4.04 and, pending
such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the
Agents and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing
in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of set-off. Each Agent
and each Lender agrees to notify such Loan Party promptly after any such set-off and application made by such Agent or such Lender
or any of their respective Affiliates provided that the failure to give such notice shall not affect the validity of such set-off
and application. The rights of the Agents and the Lenders under this Section 12.05 are in addition to the other rights and remedies
(including other rights of set-off) which the Agents and the Lenders may have under this Agreement or any other Loan Documents
of law or otherwise.
Section
12.06 Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining
portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
Section
12.07 Assignments and Participations.
(a)
This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and
each Lender and their respective successors and assigns; provided, however, that none of the Loan Parties may assign
or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Lender and
any such assignment without the Lenders’ prior written consent shall be null and void.
(b)
Subject to the conditions set forth in clause (c) below, each Lender may assign to one or more other lenders or other entities
all or a portion of its rights and obligations under this Agreement with respect to all or a portion of its Term Loan Commitment
and any Term Loan made by it with the written consent of the Origination Agent; provided, however, that no written
consent of the Origination Agent shall be required (A) in connection with any assignment by a Lender to a Lender, an Affiliate
of such Lender or a Related Fund of such Lender or (B) if such assignment is in connection with any merger, consolidation, sale,
transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender.
(c)
Assignments shall be subject to the following additional conditions:
(i)
Each such assignment shall be in an amount which is at least $5,000,000 or a multiple of $1,000,000 in excess thereof (or the
remainder of such Lender’s Commitment and Loans) (except such minimum amount shall not apply to an assignment by a Lender
to (A) a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (B) a group of new Lenders, each of whom is an
Affiliate or Related Fund of each other to the extent the aggregate amount to be assigned to all such new Lenders is at least
$5,000,000 or a multiple of $1,000,000 in excess thereof); and
(ii)
Except as provided in the last sentence of this Section 12.07(c)(ii), the parties to each such assignment shall execute and deliver
to the Administrative Agent and the Origination Agent, for the Administrative Agent’s acceptance and the Origination Agent’s
consent, an Assignment and Acceptance, together with any promissory note subject to such assignment and such parties shall deliver
to the Administrative Agent, for the benefit of the Administrative Agent, a processing and recordation fee of $3,500 (except the
payment of such fee shall not be required in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender
or a Related Fund of such Lender). Notwithstanding anything to the contrary contained in this Section 12.07(c)(ii), a Lender may
assign any or all of its rights under the Loan Documents to an Affiliate of such Lender or a Related Fund of such Lender without
delivering an Assignment and Acceptance to the Agents or to any other Person; provided, however, that (A) the Borrowers
and the Administrative Agent may continue to deal solely and directly with such assigning Lender until an Assignment and Acceptance
has been delivered to the Administrative Agent for recordation on the Register, (B) the Collateral Agent may continue to deal
solely and directly with such assigning Lender until receipt by the Collateral Agent of a copy of the fully executed Assignment
and Acceptance pursuant to Section 12.07(g), (C) the failure of such assigning Lender to deliver an Assignment and Acceptance
to the Agents shall not affect the legality, validity, or binding effect of such assignment, and (D) an Assignment and Acceptance
between the assigning Lender and an Affiliate of such Lender or a Related Fund of such Lender shall be effective as of the date
specified in such Assignment and Acceptance and recordation on the Related Party Register referred to in the last sentence of
Section 12.07(f) below;
(iii)
No such assignment shall be made to (A) any Loan Party, any Permitted Holder (or other equity holder of the Parent) or any of
their respective Affiliates or (B) any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder,
would constitute any of the foregoing Persons described in this clause (B).
(d)
Upon such execution, delivery and acceptance, from and after the effective date specified in each Assignment and Acceptance and
recordation on the Register, (A) the assignee thereunder shall become a “Lender” hereunder and, in addition to the
rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder
that have been assigned to it pursuant to such Assignment and Acceptance and (B) the assigning Lender thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all
or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to
be a party hereto).
(e)
By executing and delivering an Assignment and Acceptance, the assigning Lender and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, the assigning
Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto; (ii) the assigning Lender
makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or
any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any
other Loan Document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement and
the other Loan Documents, together with such other documents and information it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance
upon the assigning Lender, any Agent or any Lender and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking action under this Agreement and the other Loan Documents;
(v) such assignee appoints and authorizes the Agents to take such action as agents on its behalf and to exercise such powers under
this Agreement and the other Loan Documents as are delegated to the Agents by the terms hereof and thereof, together with such
powers as are reasonably incidental hereto and thereto; and (vi) such assignee agrees that it will perform in accordance with
their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed
by it as a Lender.
(f)
The Administrative Agent shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain, or cause to
be maintained at the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (the
“Register”) for the recordation of the names and addresses of the Lenders and the Commitments of, and the principal
amount of the Loans (and stated interest thereon) (the “Registered Loans”) owing to each Lender from time to
time. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers,
the Agents and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes
of this Agreement. The Register shall be available for inspection by the Administrative Borrower and any Lender at any reasonable
time and from time to time upon reasonable prior notice. In the case of an assignment pursuant to the last sentence of Section
12.07(c)(ii) as to which an Assignment and Acceptance is not delivered to the Administrative Agent, the assigning Lender shall,
acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain, or cause to be maintained, a register (the
“Related Party Register”) comparable to the Register on behalf of the Borrowers. The Related Party Register
shall be available for inspection by the Borrowers and any Lender at any reasonable time and from time to time upon reasonable
prior notice.
(g)
Upon receipt by the Administrative Agent of a completed Assignment and Acceptance, all “know your customer” information
requested by the Administrative Agent of the new Lender, receipt by the Administrative Agent of its fee pursuant to Section 12.07(c)(ii)
hereof, and subject to any consent required from the Administrative Agent or the Collateral Agent pursuant to Section 12.07(b)
(which consent of the applicable Agent must be evidenced by such Agent’s execution of an acceptance to such Assignment and
Acceptance), the Administrative Agent shall accept such assignment, record the information contained therein in the Register (as
adjusted to reflect any principal payments on or amounts capitalized and added to the principal balance of the Loans and/or Commitment
reductions made subsequent to the effective date of the applicable assignment, as confirmed in writing by the corresponding assignor
and assignee in conjunction with delivery of the assignment to the Administrative Agent) and provide to the Collateral Agent a
copy of the fully executed Assignment and Acceptance.
(h)
A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration
of such assignment or sale on the Register or the Related Party Register (and each registered note shall expressly so provide).
Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected
only by registration of such assignment or sale on the Register or the Related Party Register, together with the surrender of
the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale
duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s),
one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s).
(i)
In the event that any Lender sells participations in a Registered Loan, such Lender shall, acting for this purpose as a non-fiduciary
agent on behalf of the Borrowers, maintain, or cause to be maintained, a register, on which it enters the name of all participants
in the Registered Loans held by it and the principal amount (and stated interest thereon) of the portion of the Registered Loan
that is the subject of the participation (the “Participant Register”). A Registered Loan (and the registered
note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant
Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered
note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register.
The Participant Register shall be available for inspection by the Administrative Borrower and any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(j)
Any Foreign Lender who purchases or is assigned or participates in any portion of such Registered Loan shall comply with Section
2.09(d).
(k)
Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations
under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments and the
Loans made by it); provided, that (i) such Lender’s obligations under this Agreement (including without limitation, its
Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations, and the Borrowers, the Agents and the other Lenders shall continue
to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement
and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any
action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of
the Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans
or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral
or any Loan Party (except as set forth in Section 10.08 of this Agreement or any other Loan Document). The Loan Parties agree
that each participant shall be entitled to the benefits of Section 2.09 and Section 2.10 of this Agreement with respect to its
participation in any portion of the Commitments and the Loans as if it was a Lender.
(l)
Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or loans made to
such Lender pursuant to securitization or similar credit facility (a “Securitization”); 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. The Loan Parties shall cooperate with such Lender and its Affiliates to effect the
Securitization including, without limitation, by providing such information as may be reasonably requested by such Lender in connection
with the rating of its Loans or the Securitization.
Section
12.08 Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto
in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of this Agreement by telecopier or electronic mail shall be equally
as effective as delivery of an original executed counterpart of this Agreement. Any party delivering an executed counterpart of
this Agreement by telecopier or electronic mail also shall deliver an original executed counterpart of this Agreement but the
failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this
Agreement. The foregoing shall apply to each other Loan Document mutatis mutandis.
Section
12.09 GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (UNLESS EXPRESSLY PROVIDED TO THE CONTRARY IN
ANOTHER LOAN DOCUMENT IN RESPECT OF SUCH OTHER LOAN DOCUMENT) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.
Section
12.10 CONSENT TO JURISDICTION; SERVICE OF PROCESS AND VENUE.
(a)
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF NEW YORK IN THE COUNTY OF NEW YORK OR OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, EACH LOAN PARTY HEREBY IRREVOCABLY ACCEPTS IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY,
THE JURISDICTION OF THE AFORESAID COURTS. EACH LOAN PARTY HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF
THE AFOREMENTIONED COURTS AND IN ANY SUCH ACTION OR PROCEEDING BY ANY MEANS PERMITTED BY APPLICABLE LAW, INCLUDING, WITHOUT LIMITATION,
BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE ADMINISTRATIVE BORROWER AT ITS ADDRESS
FOR NOTICES AS SET FORTH IN SECTION 12.01, SUCH SERVICE TO BECOME EFFECTIVE 10 DAYS AFTER SUCH MAILING. THE LOAN PARTIES AGREE
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 HEREIN SHALL AFFECT THE RIGHT OF THE AGENTS AND THE LENDERS TO
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY LOAN
PARTY IN ANY OTHER JURISDICTION. EACH LOAN PARTY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE JURISDICTION OR LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY
SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT
ANY LOAN PARTY HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH
SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY,
EACH LOAN PARTY HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
(b)
Each Loan Party hereby irrevocably appoints C T Corporation System (the “Process Agent”), with an office on
the date hereof at 111 Eighth Avenue, New York, New York 10011 as its agent to receive on behalf of each Loan Party service of
the summons and complaint and any other process which may be served in any action or proceeding described above. Such service
may be made by mailing or delivering a copy of such process to each Loan Party, in care of the Process Agent at the address specified
above for such Process Agent, and such Loan Party hereby irrevocably authorizes and directs the Process Agent to accept such service
on its behalf. Each Loan Party covenants and agrees that, for so long as it shall be bound under this Agreement or any other Loan
Document, it shall maintain a duly appointed agent for the service of summons and other legal process in New York, New York, United
States of America, for the purposes of any legal action, suit or proceeding brought by any party in respect of this Agreement
or such other Loan Document and shall keep the Agents advised of the identity and location of such agent. If for any reason there
is no authorized agent for service of process in New York, each Loan Party irrevocably consents to the service of process out
of the said courts by mailing copies thereof by registered United States air mail postage prepaid to it at its address specified
in Section 12.01. Nothing in this Section 12.10 shall affect the right of any Secured Party to (i) commence legal proceedings
or otherwise sue any Loan Party in the jurisdiction in which it is organized or in any other court having jurisdiction over such
Loan Party or (ii) serve process upon any Loan Party in any manner authorized by the laws of any such jurisdiction.
Section
12.11 WAIVER OF JURY TRIAL, ETC. EACH LOAN PARTY, EACH AGENT AND EACH LENDER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, OR UNDER ANY
AMENDMENT, WAIVER, CONSENT, INSTRUMENT, DOCUMENT OR OTHER AGREEMENT DELIVERED OR WHICH IN THE FUTURE MAY BE DELIVERED IN CONNECTION
THEREWITH, OR ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREES THAT ANY SUCH ACTION,
PROCEEDINGS OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. EACH LOAN PARTY CERTIFIES THAT NO OFFICER, REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY AGENT OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT ANY AGENT OR ANY LENDER WOULD NOT,
IN THE EVENT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM, SEEK TO ENFORCE THE FOREGOING WAIVERS. EACH LOAN PARTY HEREBY ACKNOWLEDGES
THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENTS AND THE LENDERS ENTERING INTO THIS AGREEMENT.
Section
12.12 Consent by the Agents and Lenders. Except as otherwise expressly set forth herein to the contrary or in any
other Loan Document, if the consent, approval, satisfaction, determination, judgment, acceptance or similar action (an “Action”)
of any Agent or any Lender shall be permitted or required pursuant to any provision hereof or any provision of any other agreement
to which any Loan Party is a party and to which any Agent or any Lender has succeeded thereto, such Action shall be required to
be in writing and may be withheld or denied by such Agent or such Lender, in its sole discretion, with or without any reason,
and without being subject to question or challenge on the grounds that such Action was not taken in good faith.
Section
12.13 No Party Deemed Drafter. Each of the parties hereto agrees that no party hereto shall be deemed to be the drafter
of this Agreement.
Section
12.14 Reinstatement; Certain Payments. If any claim is ever made upon any Secured Party for repayment or recovery of any
amount or amounts received by such Secured Party in payment or on account of any of the Obligations, such Secured Party shall
give prompt notice of such claim to each other Agent and Lender and the Administrative Borrower, and if such Secured Party repays
all or part of such amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction
over such Secured Party or any of its property, or (ii) any reasonable good faith settlement or compromise of any such claim effected
by such Secured Party with any such claimant, then and in such event each Loan Party agrees that (A) any such judgment, decree,
order, settlement or compromise shall be binding upon it notwithstanding the cancellation of any Indebtedness hereunder or under
the other Loan Documents or the termination of this Agreement or the other Loan Documents, and (B) it shall be and remain liable
to such Secured Party hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally
been received by such Secured Party.
Section
12.15 Indemnification; Limitation of Liability for Certain Damages.
(a)
In addition to each Loan Party’s other Obligations under this Agreement, each Loan Party agrees to, jointly and severally,
defend, protect, indemnify and hold harmless each Secured Party and all of their respective Affiliates, officers, directors, employees,
attorneys, consultants and agents (collectively called the “Indemnitees”) from and against any and all losses,
damages, liabilities, obligations, penalties, fees, reasonable costs and expenses (including, without limitation, reasonable attorneys’
fees, costs and expenses) incurred by such Indemnitees, whether prior to or from and after the Effective Date, whether direct,
indirect or consequential, as a result of or arising from or relating to or in connection with any of the following: (i) the negotiation,
preparation, execution or performance or enforcement of this Agreement, any other Loan Document or of any other document executed
in connection with the transactions contemplated by this Agreement, (ii) any Agent’s or any Lender’s furnishing of
funds to the Borrowers under this Agreement or the other Loan Documents, including, without limitation, the management of any
such Loans or the Borrowers’ use of the proceeds thereof, (iii) the Agents and the Lenders relying on any instructions of
the Administrative Borrower or the handling of the Loan Account and Collateral of the Borrowers as herein provided, (iv) any matter
relating to the financing transactions contemplated by this Agreement or the other Loan Documents or by any document executed
in connection with the transactions contemplated by this Agreement or the other Loan Documents, or (v) any claim, litigation,
investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto (collectively,
the “Indemnified Matters”); provided, however, that the Loan Parties shall not have any obligation
to any Indemnitee under this subsection (a) for any Indemnified Matter caused by the gross negligence or willful misconduct of
such Indemnitee, as determined by a final non-appealable judgment of a court of competent jurisdiction.
(b)
The indemnification for all of the foregoing losses, damages, fees, costs and expenses of the Indemnitees set forth in this Section
12.15 are chargeable against the Loan Account. To the extent that the undertaking to indemnify, pay and hold harmless set forth
in this Section 12.15 may be unenforceable because it is violative of any law or public policy, each Loan Party shall, jointly
and severally, contribute the maximum portion which it is permitted to pay and satisfy under applicable law, to the payment and
satisfaction of all Indemnified Matters incurred by the Indemnitees.
(c)
No Loan Party shall assert, and each Loan Party hereby waives, any claim against the Indemnitees, on any theory of liability,
for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor
is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result
of, or in any way related to, this Agreement or any other Loan Document or any agreement or instrument contemplated hereby or
thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds
thereof or any act or omission or event occurring in connection therewith, and each Loan Party hereby waives, releases and agrees
not to sue upon any such claim or seek any such damages, whether or not accrued and whether or not known or suspected to exist
in its favor.
(d)
The indemnities and waivers set forth in this Section 12.15 shall survive the repayment of the Obligations and discharge of any
Liens granted under the Loan Documents.
Section
12.16 Records. The unpaid principal of and interest on the Loans, the interest rate or rates applicable to such
unpaid principal and interest, the duration of such applicability, the Commitments, and the accrued and unpaid fees payable pursuant
to Section 2.06 hereof, shall at all times be ascertained from the records of the Agents, which shall be conclusive and binding
absent manifest error.
Section
12.17 Binding Effect. This Agreement shall become effective when it shall have been executed by each Loan Party, each Agent
and each Lender and when the conditions precedent set forth in Section 5.01 hereof have been satisfied or waived in writing by
the Agents, and thereafter shall be binding upon and inure to the benefit of each Loan Party, each Agent and each Lender, and
their respective successors and assigns, except that the Loan Parties shall not have the right to assign their rights hereunder
or any interest herein without the prior written consent of each Agent and each Lender, and any assignment by any Lender shall
be governed by Section 12.07 hereof.
Section
12.18 Highest Lawful Rate. It is the intention of the parties hereto that each Agent and each Lender shall conform strictly
to usury laws applicable to it. Accordingly, if the transactions contemplated hereby or by any other Loan Document would be usurious
as to any Agent or any Lender under laws applicable to it (including the laws of the United States of America and the State of
New York or any other jurisdiction whose laws may be mandatorily applicable to such Agent or such Lender notwithstanding the other
provisions of this Agreement), then, in that event, notwithstanding anything to the contrary in this Agreement or any other Loan
Document or any agreement entered into in connection with or as security for the Obligations, it is agreed as follows: (i) the
aggregate of all consideration which constitutes interest under law applicable to any Agent or any Lender that is contracted for,
taken, reserved, charged or received by such Agent or such Lender under this Agreement or any other Loan Document or agreements
or otherwise in connection with the Obligations shall under no circumstances exceed the maximum amount allowed by such applicable
law, any excess shall be canceled automatically and if theretofore paid shall be credited by such Agent or such Lender on the
principal amount of the Obligations (or, to the extent that the principal amount of the Obligations shall have been or would thereby
be paid in full, refunded by such Agent or such Lender, as applicable, to the Borrowers); and (ii) in the event that the maturity
of the Obligations is accelerated by reason of any Event of Default under this Agreement or otherwise, or in the event of any
required or permitted prepayment, then such consideration that constitutes interest under law applicable to any Agent or any Lender
may never include more than the maximum amount allowed by such applicable law, and excess interest, if any, provided for in this
Agreement or otherwise shall, subject to the last sentence of this Section 12.18, be canceled automatically by such Agent or such
Lender, as applicable, as of the date of such acceleration or prepayment and, if theretofore paid, shall be credited by such Agent
or such Lender, as applicable, on the principal amount of the Obligations (or, to the extent that the principal amount of the
Obligations shall have been or would thereby be paid in full, refunded by such Agent or such Lender to the Borrowers). All sums
paid or agreed to be paid to any Agent or any Lender for the use, forbearance or detention of sums due hereunder shall, to the
extent permitted by law applicable to such Agent or such Lender, be amortized, prorated, allocated and spread throughout the full
term of the Loans until payment in full so that the rate or amount of interest on account of any Loans hereunder does not exceed
the maximum amount allowed by such applicable law. If at any time and from time to time (x) the amount of interest payable to
any Agent or any Lender on any date shall be computed at the Highest Lawful Rate applicable to such Agent or such Lender pursuant
to this Section 12.18 and (y) in respect of any subsequent interest computation period the amount of interest otherwise payable
to such Agent or such Lender would be less than the amount of interest payable to such Agent or such Lender computed at the Highest
Lawful Rate applicable to such Agent or such Lender, then the amount of interest payable to such Agent or such Lender in respect
of such subsequent interest computation period shall continue to be computed at the Highest Lawful Rate applicable to such Agent
or such Lender until the total amount of interest payable to such Agent or such Lender shall equal the total amount of interest
which would have been payable to such Agent or such Lender if the total amount of interest had been computed without giving effect
to this Section 12.18.
For
purposes of this Section 12.18, the term “applicable law” shall mean that law in effect from time to time and applicable
to the loan transaction between the Borrowers, on the one hand, and the Agents and the Lenders, on the other, that lawfully permits
the charging and collection of the highest permissible, lawful non-usurious rate of interest on such loan transaction and this
Agreement, including laws of the State of New York and, to the extent controlling, laws of the United States of America.
The
right to accelerate the maturity of the Obligations does not include the right to accelerate any interest that has not accrued
as of the date of acceleration.
Section
12.19 Confidentiality. Each Agent and each Lender agrees (on behalf of itself and each of its affiliates, directors,
officers, employees and representatives) to use reasonable precautions to keep confidential, in accordance with its customary
procedures for handling confidential information of this nature and in accordance with safe and sound practices of comparable
commercial finance companies, any non-public information supplied to it by the Loan Parties pursuant to this Agreement or the
other Loan Documents which is identified in writing by the Loan Parties as being confidential at the time the same is delivered
to such Person (and which at the time is not, and does not thereafter become, publicly available or available to such Person from
another source not known to be subject to a confidentiality obligation to such Person not to disclose such information), provided
that nothing herein shall limit the disclosure by any Agent or any Lender of any such information (i) to its Affiliates and
to its and its Affiliates’ respective equityholders (including, without limitation, investors and/or partners), directors,
officers, employees, agents, trustees, counsel, 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
in accordance with this Section 12.19); (ii) to any other party hereto; (iii) to any assignee or participant (or prospective assignee
or participant) or any party to a Securitization so long as such assignee or participant (or prospective assignee or participant)
or party to a Securitization first agrees, in writing, to be bound by confidentiality provisions similar in substance to this
Section 12.19; (iv) to the extent required by any Requirement of Law or judicial process or as otherwise requested by any Governmental
Authority; (v) to the National Association of Insurance Commissioners or any similar organization, any examiner, auditor or accountant
or any nationally recognized rating agency or otherwise to the extent consisting of general portfolio information that does not
identify Loan Parties; (vi) in connection with any litigation to which any Agent or any Lender is a party; (vii) 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; or (viii) with the consent of the Administrative
Borrower.
Section
12.20 Disclosure. Each Loan Party agrees that neither it nor any of its Affiliates will now or in the future issue
any press release or other disclosure using the name of an Agent, any Lender or any of their respective Affiliates or referring
to this Agreement or any other Loan Document without the prior written consent of such Agent or such Lender, except to the extent
that such Loan Party or such Affiliate is required to do so under applicable law (in which event, such Loan Party or such Affiliate
will consult with such Agent or such Lender before issuing such press release or other public disclosure). Each Loan Party hereby
authorizes each Agent and each Lender, after consultation with the Borrowers, to advertise the closing of the transactions contemplated
by this Agreement, and to make appropriate announcements of the financial arrangements entered into among the parties hereto,
as such Agent or such Lender shall deem appropriate, including, without limitation, on a home page or similar place for dissemination
of information on the Internet or worldwide web, or in announcements commonly known as tombstones, in such trade publications,
business journals, newspapers of general circulation and to such selected parties as such Agent or such Lender shall deem appropriate.
Section
12.21 Integration. This Agreement, together with the other Loan Documents, reflects the entire understanding of the parties
with respect to the transactions contemplated hereby and shall not be contradicted or qualified by any other agreement, oral or
written, before the date hereof.
Section
12.22 USA PATRIOT Act. Each Lender that is subject to the requirements of the USA PATRIOT Act hereby notifies the
Borrowers that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that
identifies the entities composing the Borrowers, which information includes the name and address of each such entity and other
information that will allow such Lender to identify the entities composing the Borrowers in accordance with the USA PATRIOT Act.
Each Loan Party agrees to take such action and execute, acknowledge and deliver at its sole cost and expense, such instruments
and documents as any Lender may reasonably require from time to time in order to enable such Lender to comply with the USA PATRIOT
Act.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
| |
BORROWERS: |
| |
|
| |
RHINO
ENERGY LLC |
| |
|
| |
By: |
/s/
Richard A. Boone |
| |
Name: |
Richard A. Boone |
| |
Title: |
CEO & President |
| |
RHINO
EXPLORATION LLC |
| |
RHINO
TECHNOLOGIES LLC |
| |
SPRINGDALE
LAND LLC |
| |
CAM
MINING LLC |
| |
MCCLANE
CANYON MINING LLC |
| |
HOPEDALE
MINING LLC |
| |
CAM-OHIO
REAL ESTATE LLC |
| |
CAM-KENTUCKY
REAL ESTATE LLC |
| |
CAM-COLORADO
LLC |
| |
TAYLORVILLE
MINING LLC |
| |
LEESVILLE
LAND LLC |
| |
CAM
AIRCRAFT LLC |
| |
CASTLE
VALLEY MINING LLC |
| |
PENNYRILE
ENERGY LLC |
| |
|
| |
By: |
/s/
Richard A. Boone |
| |
Name: |
Richard A. Boone |
| |
Title: |
CEO & President |
| |
GUARANTORS: |
| |
|
| |
RHINO
RESOURCE PARTNERS LP |
| |
|
| |
By:
Rhino GP LLC, its general partner |
| |
|
| |
By: |
/s/
Richard A. Boone |
| |
Name: |
Richard A. Boone |
| |
Title: |
CEO & President |
| |
RHINO
TRUCKING LLC |
| |
RHINO
SERVICES LLC |
| |
RHINO
OILFIELD SERVICES LLC |
| |
TRIAD
ROOF SUPPORT SYSTEMS LLC |
| |
CLINTON
STONE LLC |
| |
RHINO
COALFIELD SERVICES LLC |
| |
RHINO
NORTHERN HOLDINGS LLC |
| |
CAM-BB
LLC |
| |
CAM
COAL TRADING LLC |
| |
|
| |
By: |
/s/
Richard A. Boone |
| |
Name: |
Richard A. Boone |
| |
Title: |
CEO & President |
| |
COLLATERAL
AGENT AND ADMINISTRATIVE AGENT: |
| |
|
| |
CORTLAND
CAPITAL MARKET SERVICES LLC |
| |
|
| |
By: |
/s/
Emily Ergang Pappas |
| |
Name: |
Emily Ergang Pappas |
| |
Title: |
Associate Counsel |
| |
ORIGINATION
AGENT: |
| |
|
| |
CB
AGENT SERVICES LLC |
| |
|
| |
By: |
/s/
Morris Beyda |
| |
Name: |
Morris Beyda |
| |
Title: |
Partner & COO |
| |
LENDER: |
| |
|
| |
COLBECK
STRATEGIC LENDING MASTER, L.P. |
| |
|
| |
By:
|
Colbeck
Capital Management, LLC, its investment manager |
| |
|
| |
By: |
/s/
Baabur Khondker |
| |
Name: |
Baabur Khondker |
| |
Title:
|
Chief Financial Officer |
| |
LENDER: |
| |
|
| |
CION
INVESTMENT CORPORATION |
| |
|
| |
By: |
/s/
Michael Reisner |
| |
Name: |
Michael Reisner |
| |
Title: |
Co-President and Co-CEO |
Schedule
1.01(A)
| Name of Lender | |
Effective Date Term Loan Commitment | | |
Delayed Date Term Loan Commitment | | |
Total Term
Loan
Commitment | |
| Colbeck Strategic Lending Master, L.P. | |
$ | 30,000,000 | | |
$ | 40,000,0000 | | |
$ | 70,000,000 | |
| CION INVESTMENT CORPORATION | |
$ | 10,000,000 | | |
$ | 0 | | |
$ | 10,000,000 | |
| Total | |
$ | 40,000,000 | | |
$ | 40,000,000 | | |
$ | 80,000,000 | |
EXHIBIT
2.09(d)-1
U.S.
TAX COMPLIANCE CERTIFICATE
(For
Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference
is hereby made to the Financing Agreement dated as of December 27, 2017 (as amended, supplemented or otherwise modified from time
to time, the “Financing Agreement”), by and among Rhino Resource Partners LP, a Delaware limited partnership
(the “Parent”), Rhino Energy LLC, a Delaware limited liability company (“Rhino”), each subsidiary
of Rhino listed as a “Borrower” on the signature pages thereto (together with Rhino, each a “Borrower”
and collectively, the “Borrowers”), each subsidiary of the Parent listed as a “Guarantor”
on the signature pages thereto (together with the Parent and each other Person that executes a joinder agreement and becomes a
“Guarantor” thereunder, each a “Guarantor” and collectively, the “Guarantors”),
the lenders from time to time party thereto (each a “Lender” and collectively, the “Lenders”),
Cortland Capital Market Services LLC (“Cortland”), as collateral agent for the Lenders (in such capacity, together
with its successors and assigns in such capacity, the “Collateral Agent”), Cortland, as administrative agent
for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “Administrative Agent”)
and CB Agent Services LLC, as origination agent for the Lenders (in such capacity, together with its successors and permitted
assigns in such capacity, the “Origination Agent” and together with the Collateral Agent and the Administrative
Agent, each an “Agent” and collectively, the “Agents”). Unless otherwise defined herein,
terms defined in the Financing Agreement and used herein shall have the meanings given to them in the Financing Agreement.
Pursuant
to the provisions of Section 2.09(d) of the Financing Agreement, the undersigned hereby certifies that (i) it is the sole record
and beneficial owner of the Loan or Loans (as well as any promissory note evidencing any such Loan) in respect of which it is
providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iii)
it is not a ten percent shareholder of a Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code and
(iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue
Code.
The
undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form
W-8BEN. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes,
the undersigned shall promptly so inform the Administrative Borrower and the Administrative Agent, and (2) the undersigned shall
have at all times furnished the Administrative Borrower and the Administrative Agent with a properly completed and currently effective
certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar
years preceding such payments.
| [NAME
OF LENDER] |
|
| |
|
|
| By: |
|
|
| Name:
|
|
|
| Title:
|
|
|
Date:
________ __, 20[ ]
EXHIBIT
2.09(d)-2
U.S.
TAX COMPLIANCE CERTIFICATE
(For
Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference
is hereby made to the Financing Agreement dated as of December 27, 2017 (as amended, supplemented or otherwise modified from time
to time, the “Financing Agreement”), by and among Rhino Resource Partners LP, a Delaware limited partnership
(the “Parent”), Rhino Energy LLC, a Delaware limited liability company (“Rhino”), each subsidiary
of Rhino listed as a “Borrower” on the signature pages thereto (together with Rhino, each a “Borrower”
and collectively, the “Borrowers”), each subsidiary of the Parent listed as a “Guarantor”
on the signature pages thereto (together with the Parent and each other Person that executes a joinder agreement and becomes a
“Guarantor” thereunder, each a “Guarantor” and collectively, the “Guarantors”),
the lenders from time to time party thereto (each a “Lender” and collectively, the “Lenders”),
Cortland Capital Market Services LLC (“Cortland”), as collateral agent for the Lenders (in such capacity, together
with its successors and assigns in such capacity, the “Collateral Agent”), Cortland, as administrative agent
for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “Administrative Agent”)
and CB Agent Services LLC, as origination agent for the Lenders (in such capacity, together with its successors and permitted
assigns in such capacity, the “Origination Agent” and together with the Collateral Agent and the Administrative
Agent, each an “Agent” and collectively, the “Agents”). Unless otherwise defined herein,
terms defined in the Financing Agreement and used herein shall have the meanings given to them in the Financing Agreement.
Pursuant
to the provisions of Section 2.09(d) of the Financing Agreement, the undersigned hereby certifies that (i) it is the sole record
and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the
meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iii) it is not a ten percent shareholder of the Borrower within
the meaning of Section 871(h)(3)(B) of the Internal Revenue Code, and (iv) it is not a controlled foreign corporation related
to a Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code.
The
undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN. By executing
this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall
promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly
completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned,
or in either of the two calendar years preceding such payments.
| [NAME
OF PARTICIPANT] |
|
| |
|
| By: |
|
|
| Name:
|
|
|
| Title:
|
|
|
Date:
________ __, 20[ ]
EXHIBIT
2.09(d)-3
U.S.
TAX COMPLIANCE CERTIFICATE
(For
Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference
is hereby made to the Financing Agreement dated as of December 27, 2017 (as amended, supplemented or otherwise modified from time
to time, the “Financing Agreement”), by and among Rhino Resource Partners LP, a Delaware limited partnership
(the “Parent”), Rhino Energy LLC, a Delaware limited liability company (“Rhino”), each subsidiary
of Rhino listed as a “Borrower” on the signature pages thereto (together with Rhino, each a “Borrower”
and collectively, the “Borrowers”), each subsidiary of the Parent listed as a “Guarantor”
on the signature pages thereto (together with the Parent and each other Person that executes a joinder agreement and becomes a
“Guarantor” thereunder, each a “Guarantor” and collectively, the “Guarantors”),
the lenders from time to time party thereto (each a “Lender” and collectively, the “Lenders”),
Cortland Capital Market Services LLC (“Cortland”), as collateral agent for the Lenders (in such capacity, together
with its successors and assigns in such capacity, the “Collateral Agent”), Cortland, as administrative agent
for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “Administrative Agent”)
and CB Agent Services LLC, as origination agent for the Lenders (in such capacity, together with its successors and permitted
assigns in such capacity, the “Origination Agent” and together with the Collateral Agent and the Administrative
Agent, each an “Agent” and collectively, the “Agents”). Unless otherwise defined herein,
terms defined in the Financing Agreement and used herein shall have the meanings given to them in the Financing Agreement.
Pursuant
to the provisions of Section 2.09(d) of the Financing Agreement, the undersigned hereby certifies that (i) it is the sole record
owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners or members
are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of
its direct or indirect partners or members is a bank extending credit pursuant to a loan agreement entered into in the ordinary
course of its trade or business within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iv) none of its direct
or indirect partners or members is a ten percent shareholder of a Borrower within the meaning of Section 871(h)(3)(B) of the Internal
Revenue Code and (v) none of its direct or indirect partners or members is a controlled foreign corporation related to a Borrower
as described in Section 881(c)(3)(C) of the Internal Revenue Code.
The
undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of
its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied
by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest
exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes,
the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with
a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the
undersigned, or in either of the two calendar years preceding such payments.
| [NAME
OF PARTICIPANT] |
|
| |
|
| By: |
|
|
| Name:
|
|
|
| Title:
|
|
|
Date:
________ __, 20[ ]
EXHIBIT
2.09(d)-4
U.S.
TAX COMPLIANCE CERTIFICATE
(For
Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference
is hereby made to the Financing Agreement dated as of December 27, 2017 (as amended, supplemented or otherwise modified from time
to time, the “Financing Agreement”), by and among Rhino Resource Partners LP, a Delaware limited partnership
(the “Parent”), Rhino Energy LLC, a Delaware limited liability company (“Rhino”), each subsidiary
of Rhino listed as a “Borrower” on the signature pages thereto (together with Rhino, each a “Borrower”
and collectively, the “Borrowers”), each subsidiary of the Parent listed as a “Guarantor”
on the signature pages thereto (together with the Parent and each other Person that executes a joinder agreement and becomes a
“Guarantor” thereunder, each a “Guarantor” and collectively, the “Guarantors”),
the lenders from time to time party thereto (each a “Lender” and collectively, the “Lenders”),
Cortland Capital Market Services LLC (“Cortland”), as collateral agent for the Lenders (in such capacity, together
with its successors and assigns in such capacity, the “Collateral Agent”), Cortland, as administrative agent
for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “Administrative Agent”)
and CB Agent Services LLC, as origination agent for the Lenders (in such capacity, together with its successors and permitted
assigns in such capacity, the “Origination Agent” and together with the Collateral Agent and the Administrative
Agent, each an “Agent” and collectively, the “Agents”). Unless otherwise defined herein,
terms defined in the Financing Agreement and used herein shall have the meanings given to them in the Financing Agreement.
Pursuant
to the provisions of Section 2.09(d) of the Financing Agreement, the undersigned hereby certifies that (i) it is the sole record
owner of the Loan or Loans (as well as any promissory note evidencing any such Loan) in respect of which it is providing this
certificate, (ii) its direct or indirect partners or members are the sole beneficial owners of such Loan or Loans (as well as
any promissory note evidencing such Loan), (iii) with respect to the extension of credit pursuant to this Financing Agreement
or any other Loan Document, neither the undersigned nor any of its direct or indirect partners or members is a bank extending
credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section
881(c)(3)(A) of the Internal Revenue Code, (iv) none of its direct or indirect partners or members is a ten percent shareholder
of a Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code and (v) none of its direct or indirect partners
or members is a controlled foreign corporation related to a Borrower as described in Section 881(c)(3)(C) of the Internal Revenue
Code.
The
undersigned has furnished the Administrative Agent and the Administrative Borrower with IRS Form W-8IMY accompanied by one of
the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN
or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners
that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information
provided on this certificate changes, the undersigned shall promptly so inform the Administrative Borrower and the Administrative
Agent, and (2) the undersigned shall have at all times furnished the Administrative Borrower and the Administrative Agent with
a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the
undersigned, or in either of the two calendar years preceding such payments.
| [NAME
OF LENDER] |
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| By: |
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| Name:
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| Title:
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Date:
________ __, 20[ ]
