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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q

(Mark One)
 
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
 
 
 
 
For the quarterly period ended
September 30, 2019
 

or
 
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
 
 
 
 
For the transition period from ____________ to ____________
 
 
Commission File Number: 1-16463
____________________________________________
PEABODYLOGOA36.JPG
PEABODY ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
 
13-4004153
(State or other jurisdiction of incorporation or organization)
 
(I.R.S. Employer Identification No.)
 
701 Market Street,
St. Louis,
Missouri
 
 
63101-1826
(Address of principal executive offices)
 
(Zip Code)
(314342-3400
(Registrant’s telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading Symbol(s)
Name of each exchange on which registered
Common Stock, par value $0.01 per share
BTU
New York Stock Exchange

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes    No
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes    No
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer”, “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act:

Large accelerated filer ☑                         Accelerated filer
Non-accelerated filer (Do not check if a smaller reporting company)         Smaller reporting company
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes No
Indicate by check mark whether the registrant has filed all documents and reports required to be filed by Sections 12, 13 or 15(d) of the Securities Exchange Act of 1934 subsequent to the distribution of securities under a plan confirmed by a court. Yes No
There were 96.8 million shares of the registrant’s common stock (par value of $0.01 per share) outstanding at November 1, 2019.




TABLE OF CONTENTS
 
Page
 
 



Table of Contents



PART I - FINANCIAL INFORMATION
Item 1. Financial Statements.
PEABODY ENERGY CORPORATION
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
 
Three Months Ended September 30,
 
Nine Months Ended September 30,
 
2019
 
2018
 
2019
 
2018
 
(Dollars in millions, except per share data)
Revenues
$
1,106.4

 
$
1,412.6

 
$
3,506.0

 
$
4,184.7

Costs and expenses
 
 
 
 
 
 
 
Operating costs and expenses (exclusive of items shown separately below)
906.2

 
1,047.9

 
2,712.8

 
3,051.6

Depreciation, depletion and amortization
141.5

 
169.6

 
479.4

 
503.1

Asset retirement obligation expenses
15.5

 
12.4

 
44.6

 
37.9

Selling and administrative expenses
32.2

 
38.6

 
107.8

 
119.7

Transaction costs related to business combinations and joint ventures
8.2

 
2.5

 
9.8

 
2.5

Other operating (income) loss:
 
 

 
 
 
 
Net gain on disposals
(1.1
)
 
(20.8
)
 
(2.8
)
 
(49.8
)
Asset impairment
20.0

 

 
20.0

 

Provision for North Goonyella equipment loss

 
49.3

 
24.7

 
49.3

North Goonyella insurance recovery

 

 
(125.0
)
 

Loss (income) from equity affiliates
20.7

 
(17.2
)
 
7.5

 
(64.4
)
Operating (loss) profit
(36.8
)
 
130.3

 
227.2

 
534.8

Interest expense
35.4

 
38.2

 
107.2

 
112.8

Loss on early debt extinguishment

 

 

 
2.0

Interest income
(7.0
)
 
(10.1
)
 
(22.5
)
 
(24.3
)
Net periodic benefit costs, excluding service cost
4.9

 
4.5

 
14.6

 
13.6

Reorganization items, net

 

 

 
(12.8
)
(Loss) income from continuing operations before income taxes
(70.1
)
 
97.7

 
127.9

 
443.5

Income tax provision
4.2

 
13.8

 
26.0

 
31.3

(Loss) income from continuing operations, net of income taxes
(74.3
)
 
83.9

 
101.9

 
412.2

Loss from discontinued operations, net of income taxes
(3.8
)
 
(4.1
)
 
(10.6
)
 
(9.0
)
Net (loss) income
(78.1
)
 
79.8

 
91.3

 
403.2

Less: Series A Convertible Preferred Stock dividends

 

 

 
102.5

Less: Net income attributable to noncontrolling interests
4.7

 
8.3

 
12.8

 
8.9

Net (loss) income attributable to common stockholders
$
(82.8
)
 
$
71.5

 
$
78.5

 
$
291.8

 
 
 
 
 
 
 
 
(Loss) income from continuing operations:
 
 
 
 
 
 
 
Basic (loss) income per share
$
(0.77
)
 
$
0.64

 
$
0.84

 
$
2.43

Diluted (loss) income per share
$
(0.77
)
 
$
0.63

 
$
0.83

 
$
2.40

Net (loss) income attributable to common stockholders:
 
 
 
 
 
 
 
Basic (loss) income per share
$
(0.81
)
 
$
0.60

 
$
0.74

 
$
2.36

Diluted (loss) income per share
$
(0.81
)
 
$
0.59

 
$
0.73

 
$
2.33


See accompanying notes to unaudited condensed consolidated financial statements.


1


Table of Contents



PEABODY ENERGY CORPORATION
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME

 
Three Months Ended September 30,
 
Nine Months Ended September 30,
 
2019
 
2018
 
2019
 
2018
 
(Dollars in millions)
Net (loss) income
$
(78.1
)
 
$
79.8

 
$
91.3

 
$
403.2

Postretirement plans and workers’ compensation obligations (net of $0.0 tax provisions in each period)
(2.2
)
 

 
(6.6
)
 

Foreign currency translation adjustment
(1.3
)
 
(1.5
)
 
(1.7
)
 
(4.5
)
Other comprehensive loss, net of income taxes
(3.5
)
 
(1.5
)
 
(8.3
)
 
(4.5
)
Comprehensive (loss) income
(81.6
)
 
78.3

 
83.0

 
398.7

Less: Series A Convertible Preferred Stock dividends

 

 

 
102.5

Less: Net income attributable to noncontrolling interests
4.7

 
8.3

 
12.8

 
8.9

Comprehensive (loss) income attributable to common stockholders
$
(86.3
)
 
$
70.0

 
$
70.2

 
$
287.3



See accompanying notes to unaudited condensed consolidated financial statements.


2


Table of Contents



PEABODY ENERGY CORPORATION
CONDENSED CONSOLIDATED BALANCE SHEETS
 
(Unaudited)
 
 
 
September 30, 2019
 
December 31, 2018
 
(Amounts in millions, except per share data)
ASSETS
 
 
 
Current assets
 
 
 
Cash and cash equivalents
$
759.1

 
$
981.9

Accounts receivable, net of allowance for doubtful accounts of $4.3 at September 30, 2019 and $4.4 at December 31, 2018
293.4

 
450.4

Inventories
294.8

 
280.2

Other current assets
218.4

 
243.1

Total current assets
1,565.7

 
1,955.6

Property, plant, equipment and mine development, net
4,899.2

 
5,207.0

Operating lease right-of-use assets
85.6

 

Investments and other assets
193.5

 
212.6

Deferred income taxes
48.5

 
48.5

Total assets
$
6,792.5

 
$
7,423.7

 
 
 
 
LIABILITIES AND STOCKHOLDERS’ EQUITY
 
 
 
Current liabilities
 
 
 
Current portion of long-term debt
$
23.4

 
$
36.5

Accounts payable and accrued expenses
877.5

 
1,022.0

Total current liabilities
900.9

 
1,058.5

Long-term debt, less current portion
1,329.4

 
1,330.5

Deferred income taxes
9.5

 
9.7

Asset retirement obligations
696.2

 
686.4

Accrued postretirement benefit costs
516.4

 
547.7

Operating lease liabilities, less current portion
55.1

 

Other noncurrent liabilities
300.0

 
339.3

Total liabilities
3,807.5

 
3,972.1

Stockholders’ equity
 
 
 
Preferred Stock — $0.01 per share par value; 100.0 shares authorized, no shares issued or outstanding as of September 30, 2019 and December 31, 2018

 

Series Common Stock — $0.01 per share par value; 50.0 shares authorized, no shares issued or outstanding as of September 30, 2019 and December 31, 2018

 

Common Stock — $0.01 per share par value; 450.0 shares authorized, 139.1 shares issued and 98.8 shares outstanding as of September 30, 2019 and 137.7 shares issued and 110.4 shares outstanding as of December 31, 2018
1.4

 
1.4

Additional paid-in capital
3,342.7

 
3,304.7

Treasury stock, at cost — 40.3 and 27.3 common shares as of September 30, 2019 and December 31, 2018
(1,337.6
)
 
(1,025.1
)
Retained earnings
901.3

 
1,074.5

Accumulated other comprehensive income
31.8

 
40.1

Peabody Energy Corporation stockholders’ equity
2,939.6

 
3,395.6

Noncontrolling interests
45.4

 
56.0

Total stockholders’ equity
2,985.0

 
3,451.6

Total liabilities and stockholders’ equity
$
6,792.5

 
$
7,423.7


See accompanying notes to unaudited condensed consolidated financial statements.


3


Table of Contents



PEABODY ENERGY CORPORATION
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
 
Nine Months Ended September 30,
 
2019
 
2018
 
(Dollars in millions)
Cash Flows From Operating Activities
 
 
 
Net income
$
91.3

 
$
403.2

Loss from discontinued operations, net of income taxes
10.6

 
9.0

Income from continuing operations, net of income taxes
101.9

 
412.2

Adjustments to reconcile income from continuing operations, net of income taxes to net cash provided by operating activities:
 
 
 
Depreciation, depletion and amortization
479.4

 
503.1

Noncash interest expense, net
11.4

 
11.3

Deferred income taxes
(0.4
)
 
17.5

Noncash share-based compensation
30.2

 
25.6

Asset impairment
20.0

 

Net gain on disposals
(2.8
)
 
(49.8
)
Loss (income) from equity affiliates
7.5

 
(64.4
)
Provision for North Goonyella equipment loss
24.7

 
49.3

Foreign currency option contracts
3.5

 
7.9

Noncash reorganization items, net

 
(12.8
)
Changes in current assets and liabilities:
 
 
 
Accounts receivable
118.9

 
177.3

Inventories
(15.1
)
 
14.4

Other current assets
(27.3
)
 
(36.2
)
Accounts payable and accrued expenses
(115.1
)
 
(39.0
)
Collateral arrangements

 
323.1

Asset retirement obligations
9.1

 
9.5

Workers’ compensation obligations
0.5

 
(0.4
)
Postretirement benefit obligations
(37.8
)
 
(6.6
)
Pension obligations
(16.9
)
 
(68.8
)
Other, net
(13.9
)
 
10.6

Net cash provided by continuing operations
577.8

 
1,283.8

Net cash used in discontinued operations
(25.2
)
 
(23.0
)
Net cash provided by operating activities
552.6

 
1,260.8

Cash Flows From Investing Activities
 
 
 
Additions to property, plant, equipment and mine development
(182.8
)
 
(186.5
)
Changes in accrued expenses related to capital expenditures
(5.6
)
 
(7.0
)
Federal coal lease expenditures

 
(0.5
)
Insurance proceeds attributable to North Goonyella equipment losses
23.2

 

Proceeds from disposal of assets, net of receivables
27.6

 
69.0

Amount attributable to acquisition of Shoal Creek Mine
(2.4
)
 

Contributions to joint ventures
(326.4
)
 
(358.2
)
Distributions from joint ventures
316.7

 
355.0

Advances to related parties
(12.5
)
 
(5.6
)
Cash receipts from Middlemount Coal Pty Ltd
14.7

 
81.1

Investment in equity securities

 
(10.0
)
Other, net
(0.1
)
 
(2.8
)
Net cash used in investing activities
(147.6
)
 
(65.5
)
See accompanying notes to unaudited condensed consolidated financial statements.


4


Table of Contents



PEABODY ENERGY CORPORATION
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS - (Continued)
 
Nine Months Ended September 30,
 
2019
 
2018
 
(Dollars in millions)
Cash Flows From Financing Activities
 
 
 
Repayments of long-term debt
(23.9
)
 
(73.0
)
Payment of debt issuance and other deferred financing costs
(6.4
)
 
(21.2
)
Common stock repurchases
(300.2
)
 
(699.6
)
Repurchase of employee common stock relinquished for tax withholding
(12.3
)
 
(14.5
)
Dividends paid
(243.9
)
 
(44.6
)
Distributions to noncontrolling interests
(23.4
)
 
(10.3
)
Other, net
0.1

 
0.1

Net cash used in financing activities
(610.0
)
 
(863.1
)
Net change in cash, cash equivalents and restricted cash
(205.0
)
 
332.2

Cash, cash equivalents and restricted cash at beginning of period (1)
1,017.4

 
1,070.2

Cash, cash equivalents and restricted cash at end of period (2)
$
812.4

 
$
1,402.4

 
 
 
 
 
 
 
 
(1) The following table provides a reconciliation of “Cash, cash equivalents and restricted cash at beginning of period”:
Cash and cash equivalents
$
981.9

 
 
Restricted cash included in “Investments and other assets”
35.5

 
 
Cash, cash equivalents and restricted cash at beginning of period
$
1,017.4

 
 
 
 
 
 
(2) The following table provides a reconciliation of “Cash, cash equivalents and restricted cash at end of period”:
Cash and cash equivalents
$
759.1

 
 
Restricted cash included in “Investments and other assets”
53.3

 
 
Cash, cash equivalents and restricted cash at end of period
$
812.4

 
 

See accompanying notes to unaudited condensed consolidated financial statements.


5





PEABODY ENERGY CORPORATION
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS’ EQUITY

 
Three Months Ended September 30,
 
Nine Months Ended September 30,
 
2019
 
2018
 
2019
 
2018
 
(Dollars in millions, except per share data)
Series A Convertible Preferred Stock
 
 
 
 
 
 
 
Balance, beginning of period
$

 
$

 
$

 
$
576.0

Series A Convertible Preferred Stock conversions

 

 

 
(576.0
)
Balance, end of period

 

 

 

Common Stock
 
 
 
 
 
 
 
Balance, beginning of period
1.4

 
1.4

 
1.4

 
1.0

Series A Convertible Preferred Stock conversions

 

 

 
0.4

Balance, end of period
1.4

 
1.4

 
1.4

 
1.4

Additional paid-in capital
 
 
 
 
 
 
 
Balance, beginning of period
3,333.7

 
3,285.7

 
3,304.7

 
2,590.3

Dividend equivalent units on dividends declared
0.4

 
0.3

 
7.8

 
1.1

Series A Convertible Preferred Stock conversions

 

 

 
678.1

Share-based compensation for equity-classified awards
8.6

 
9.1

 
30.2

 
25.6

Balance, end of period
3,342.7

 
3,295.1

 
3,342.7

 
3,295.1

Treasury stock
 
 
 
 
 
 
 
Balance, beginning of period
(1,193.4
)
 
(564.9
)
 
(1,025.1
)
 
(175.9
)
Common stock repurchases
(144.2
)
 
(325.1
)
 
(300.2
)
 
(699.6
)
Repurchase of employee common stock relinquished for tax withholding

 

 
(12.3
)
 
(14.5
)
Balance, end of period
(1,337.6
)
 
(890.0
)
 
(1,337.6
)
 
(890.0
)
Retained earnings
 
 
 
 
 
 
 
Balance, beginning of period
999.1

 
781.3

 
1,074.5

 
613.6

Impact of adoption of Accounting Standards Update 2014-09

 

 

 
(22.5
)
Net (loss) income
(82.8
)
 
71.5

 
78.5

 
394.3

Dividends declared ($0.145, $0.125, $2.265, and $0.355 per share, respectively)
(15.0
)
 
(15.6
)
 
(251.7
)
 
(45.7
)
Series A Convertible Preferred Stock conversions

 

 

 
(102.5
)
Balance, end of period
901.3

 
837.2

 
901.3

 
837.2

Accumulated other comprehensive income (loss)
 
 
 
 
 
 
 
Balance, beginning of period
35.3

 
(1.6
)
 
40.1

 
1.4

Postretirement plans and workers' compensation obligations (net of $0.0 tax provisions in each period)
(2.2
)
 

 
(6.6
)
 

Foreign currency translation adjustment
(1.3
)
 
(1.5
)
 
(1.7
)
 
(4.5
)
Balance, end of period
31.8

 
(3.1
)
 
31.8

 
(3.1
)
Noncontrolling interests
 
 
 
 
 
 
 
Balance, beginning of period
49.7

 
43.4

 
56.0

 
49.4

Net income
4.7

 
8.3

 
12.8

 
8.9

Distributions to noncontrolling interests
(9.0
)
 
(3.7
)
 
(23.4
)
 
(10.3
)
Balance, end of period
45.4

 
48.0

 
45.4

 
48.0

Total stockholders’ equity
$
2,985.0

 
$
3,288.6

 
$
2,985.0

 
$
3,288.6


See accompanying notes to unaudited condensed consolidated financial statements.


6





PEABODY ENERGY CORPORATION
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(1)    Basis of Presentation
The condensed consolidated financial statements include the accounts of Peabody Energy Corporation (PEC) and its consolidated subsidiaries and affiliates (along with PEC, the Company or Peabody). Interests in subsidiaries controlled by the Company are consolidated with any outside stockholder interests reflected as noncontrolling interests, except when the Company has an undivided interest in a joint venture. In those cases, the Company includes its proportionate share in the assets, liabilities, revenues and expenses of the jointly controlled entities within each applicable line item of the unaudited condensed consolidated financial statements. All intercompany transactions, profits and balances have been eliminated in consolidation.
The accompanying unaudited condensed consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States (U.S. GAAP) for interim financial information and with the instructions to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of the information and footnotes required by U.S. GAAP for complete financial statements and should be read in conjunction with the consolidated financial statements and notes thereto included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2018. In the opinion of management, these financial statements reflect all normal, recurring adjustments necessary for a fair presentation. Balance sheet information presented herein as of December 31, 2018 has been derived from the Company’s audited consolidated balance sheet at that date. The Company’s results of operations for the three and nine months ended September 30, 2019 are not necessarily indicative of the results that may be expected for future quarters or for the year ending December 31, 2019.
The Financial Accounting Standards Board (FASB) Accounting Standards Codification (ASC) 852, “Reorganizations”, requires that financial statements distinguish transactions and events that are directly associated with a reorganization from the ongoing operations of the business. Accordingly, certain revenues, expenses, realized gains and losses and provisions for losses that were realized or incurred during the bankruptcy proceedings from which the Company emerged on April 3, 2017 were recorded in “Reorganization items, net” in the unaudited condensed consolidated statements of operations. “Reorganization items, net” for the nine months ended September 30, 2018 consisted of settlement gains of $12.8 million related to certain unsecured claims.
(2)    Newly Adopted Accounting Standards and Accounting Standards Not Yet Implemented
Newly Adopted Accounting Standards
Leases. In February 2016, the FASB issued Accounting Standards Update (ASU) 2016-02, “Leases (Topic 842),” to increase transparency and comparability among organizations by requiring the recognition of right-of-use (ROU) assets and lease liabilities on the balance sheet for leases with lease terms of more than 12 months. Most prominent among the changes in the standard is the recognition of ROU assets and lease liabilities by lessees for those leases classified as operating leases. The FASB continued to clarify this guidance through the issuance of additional updates to ASU 2016-02.
On January 1, 2019, the Company adopted ASU 2016-02 using the modified transition approach and elected the package of practical expedients offered under ASU 2016-02, as updated, that allows it to forgo reassessment of lease classification for leases that have already commenced. The Company also elected the practical expedients to adopt ASU 2016-02 without restating comparative prior period financial information, to not recognize ROU assets and lease liabilities for operating leases with shorter than 12 months terms and to include both lease and non-lease components within lease payments. The Company has implemented the systems functionality and internal control processes necessary to comply with the new reporting requirements of ASU 2016-02.


7


PEABODY ENERGY CORPORATION
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

The Company recognized the cumulative effect of initially applying ASU 2016-02 as an adjustment on January 1, 2019 and comparative information presented herein has not been restated. ASU 2016-02 had a material impact on the Company's consolidated balance sheet but did not have a material impact on its results of operations or its cash flows. The most significant impact was the recognition of ROU assets and lease liabilities for operating leases upon adoption, as set forth in the table below. The Company's accounting for finance leases remained unchanged.
 
Adoption of ASU 2016-02
January 1, 2019
 
(Dollars in millions)
ASSETS
 
Operating lease right-of-use assets
$
109.3

Total assets
$
109.3

 
 
LIABILITIES
 
Accounts payable and accrued expenses
$
41.8

Total current liabilities
41.8

Operating lease liabilities, less current portion
67.5

Total liabilities
$
109.3


ASU 2016-02 also requires entities to disclose certain qualitative and quantitative information regarding the amount, timing, and uncertainty of cash flows arising from leases. Such disclosures are included in Note 11. “Leases.”
Leases to explore for or use minerals, oil, natural gas and similar non-regenerative resources, including the intangible rights to explore for those natural resources and rights to use the land in which those natural resources are contained are excluded from the scope of ASU 2016-02. As such, the adoption of ASU 2016-02 did not impact the accounting for the coal reserve leases under which the Company mines a substantial amount of its coal production. Such leases typically require royalties to be paid as the coal is mined and sometimes require minimum annual royalties to be paid regardless of the amount of coal mined during the year.
Leases - Land Easements. In January 2018, the FASB issued ASU 2018-01 to provide an optional transition practical expedient to not evaluate under Topic 842 existing or expired land easements that were not previously accounted for as leases under prior leasing guidance. On January 1, 2019, the Company adopted the expedient to evaluate new or modified land easements under Topic 842, and it did not have a material impact on the Company’s results of operations, financial condition, cash flows or financial statement presentation.
Accounting Standards Not Yet Implemented
Financial Instruments - Credit Losses. In June 2016, the FASB issued ASU 2016-13 related to the measurement of credit losses on financial instruments. The new standard replaces the incurred loss methodology to record credit losses with a methodology that reflects the expected credit losses and requires consideration of a broader range of reasonable and supportable information to inform credit loss estimates. We will be required to use a forward-looking expected loss model for accounts receivables, loans, and other financial instruments to record an allowance for the estimated contractual cash flows not expected to be collected. This standard is effective for fiscal years beginning after December 15, 2019 (January 1, 2020 for the Company) and interim periods therein, with early adoption permitted. Adoption of the standard will be applied using a modified retrospective approach through a cumulative-effect adjustment to retained earnings as of the effective date to align our credit loss methodology with the new standard. The Company is currently evaluating the impact of this standard on our consolidated financial statements, including accounting policies, processes, and systems. The Company expects to adopt the standard as of January 1, 2020 with no material impact to the Company’s results of operations, financial condition, cash flows or financial statement presentation.


8


PEABODY ENERGY CORPORATION
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Fair Value Measurement. In August 2018, the FASB issued ASU 2018-13, which amended the fair value measurement guidance by removing and modifying certain disclosure requirements, while also adding new disclosure requirements. The amendments on changes in unrealized gains and losses, the range and weighted average of significant unobservable inputs used to develop Level 3 fair value measurements and the narrative description of measurement uncertainty should be applied prospectively for only the most recent interim or annual period presented in the initial fiscal year of adoption. All other amendments should be applied retrospectively to all periods presented upon their effective date. The amendments are effective for all companies for fiscal years, and interim periods within those years, beginning after December 15, 2019. Early adoption is permitted for all amendments. Further, a company may elect to early adopt the removal or modification of disclosures immediately and delay adoption of the new disclosure requirements until the effective date. The Company plans to adopt all disclosure requirements effective January 1, 2020.
Compensation- Retirement Benefits. In August 2018, the FASB issued ASU 2018-14 to add, remove and clarify disclosure requirements for employers that sponsor defined benefit pension or other postretirement plans. ASU 2018-14 is effective for fiscal years ending after December 15, 2020 for public companies and early adoption is permitted. The Company plans to adopt the disclosure requirements effective January 1, 2021.
(3)    Acquisition of Shoal Creek Mine
On December 3, 2018, the Company completed the acquisition of the Shoal Creek metallurgical coal mine, preparation plant and supporting assets located in Alabama (Shoal Creek Mine) for a purchase price of $387.4 million. In January 2019, the Company agreed to pay an additional $2.4 million to settle a working capital adjustment, bringing the total purchase price to $389.8 million. The purchase price was funded with available cash on hand and reflected customary purchase price adjustments. The acquisition expands the Company’s seaborne metallurgical mining platform.
The acquisition excluded all liabilities other than reclamation and the Company is not responsible for other liabilities arising out of or relating to the operation of the Shoal Creek Mine prior to the acquisition date, including with respect to employee benefit plans and post-employment benefits. In connection with completing the acquisition, a new collective bargaining agreement was reached with the union-represented workforce that eliminates participation in the multi-employer pension plan and replaces it with a 401(k) retirement plan. In connection with the acquisition, the Company recorded a contract based intangible liability of $3.5 million to reflect the fair value of a coal supply agreement. The liability was amortized to income in January 2019 and the related contract was renegotiated on market terms.
The preliminary purchase accounting allocations were recorded in the accompanying unaudited condensed consolidated financial statements as of, and for the period subsequent to the acquisition date. The following table summarizes the preliminary estimated fair values of assets acquired and liabilities assumed that were recognized at the acquisition and control date as well as fair value adjustments made through September 30, 2019:
 
Preliminary Allocations
 
Adjustments
 
Final Allocations
 
(Dollars in millions)
Inventories
$
39.7

 
$
0.2

 
$
39.9

Property, plant, equipment and mine development
364.7

 
0.6

 
365.3

Current liabilities
(4.1
)
 

 
(4.1
)
Asset retirement obligations
(10.5
)
 
(0.8
)
 
(11.3
)
Total purchase price
$
389.8

 
$

 
$
389.8


Determining the fair value of assets acquired and liabilities assumed required judgment and the utilization of independent valuation experts, and included the use of significant estimates and assumptions, including assumptions with respect to future cash inflows and outflows, discount rates and asset lives, among other items. Due to the unobservable inputs to the valuation, the fair value would be considered Level 3 in the fair value hierarchy.
The adjustments to the provisional fair values result from additional information obtained about facts in existence at the acquisition and control date. Adjustments to provisional fair values are assumed to have been made as of the acquisition and control date. As a result, "Depreciation, depletion and amortization" would have been lower by $0.4 million, $0.5 million and $0.4 million for the fourth quarter of 2018, first quarter of 2019 and second quarter of 2019, respectively, than was previously reported. The accompanying unaudited condensed consolidated statements of operations reflect these adjustments in the three months ended September 30, 2019.
The Company has finalized the valuation of the net assets acquired and related purchase price allocation.


9


PEABODY ENERGY CORPORATION
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

The results of Shoal Creek Mine for the three and nine months ended September 30, 2019 are included in the unaudited condensed consolidated statement of operations and are reported in the Seaborne Metallurgical Mining segment.
The following unaudited pro forma financial information presents the estimated combined results of operations of the Company and Shoal Creek Mine, on a pro forma basis, as though the operations of the Shoal Creek Mine had been combined with the Company’s operations as of January 1, 2018. The unaudited pro forma financial information does not necessarily reflect the results of operations that would have occurred had the operations of the Company and Shoal Creek Mine been combined during those periods or that may be attained in the future.
 
Three Months Ended September 30, 2018
 
Nine Months Ended September 30, 2018
 
(Dollars in millions, except per share data)
Revenues
$
1,560.2

 
$
4,517.9

Income from continuing operations, net of income taxes
139.3

 
549.0

Basic earnings per share from continuing operations
$
0.64

 
$
2.43

Diluted earnings per share from continuing operations
$
0.63

 
$
2.40


The pro forma income from continuing operations, net of income taxes includes adjustments to operating costs to reflect the additional expense for the estimated impact of the fair value adjustment for coal inventory, a reduction in postretirement benefit costs resulting from the new collective bargaining agreement described above, and the estimated impact on depreciation, depletion and amortization for the fair value adjustment for property, plant and equipment (including coal reserve assets). On a pro forma basis, the acquisition would have had no impact on taxable income due to the Company’s federal net operating losses.
(4)    Revenue Recognition
The Company accounts for revenue in accordance with ASC Topic 606, “Revenue from Contracts with Customers” (ASC 606), which the Company adopted on January 1, 2018, using the modified retrospective approach. Refer to Note 1. “Summary of Significant Accounting Policies” in the Company’s Annual Report on Form 10-K for the year ended December 31, 2018, for the Company’s policies regarding “Revenues” and “Accounts receivable, net.”
Disaggregation of Revenues
Revenue by product type and market is set forth in the following tables. With respect to its seaborne mining segments, the Company classifies as “Export” certain revenue from domestically-delivered coal under contracts in which the price is derived on a basis similar to export contracts.
 
Three Months Ended September 30, 2019
 
Seaborne Thermal Mining
 
Seaborne Metallurgical Mining
 
Powder River Basin Mining
 
Midwestern U.S. Mining
 
Western U.S. Mining
 
Corporate and Other (1)
 
Consolidated
 
(Dollars in millions)
Thermal coal
 
 
 
 
 
 
 
 
 
 
 
 
 
Domestic
$
34.8

 
$

 
$
333.6

 
$
175.8

 
$
143.6

 
$

 
$
687.8

Export
214.6

 

 

 

 

 

 
214.6

Total thermal
249.4

 

 
333.6

 
175.8

 
143.6

 

 
902.4

Metallurgical coal
 
 
 
 
 
 
 
 
 
 
 
 
 
Export

 
215.4

 

 

 

 

 
215.4

Total metallurgical

 
215.4

 

 

 

 

 
215.4

Other
0.1

 
0.9

 

 
0.2

 
6.8

 
(19.4
)
 
(11.4
)
Revenues
$
249.5

 
$
216.3

 
$
333.6

 
$
176.0

 
$
150.4

 
$
(19.4
)
 
$
1,106.4



10


PEABODY ENERGY CORPORATION
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

 
Three Months Ended September 30, 2018
 
Seaborne Thermal Mining
 
Seaborne Metallurgical Mining
 
Powder River Basin Mining
 
Midwestern U.S. Mining
 
Western U.S. Mining
 
Corporate and Other (1)
 
Consolidated
 
(Dollars in millions)
Thermal coal
 
 
 
 
 
 
 
 
 
 
 
 
 
Domestic
$
37.4

 
$

 
$
373.7

 
$
208.4

 
$
149.5

 
$

 
$
769.0

Export
267.7

 

 

 

 
3.1

 

 
270.8

Total thermal
305.1

 

 
373.7

 
208.4

 
152.6

 

 
1,039.8

Metallurgical coal
 
 
 
 
 
 
 
 
 
 
 
 
 
Export

 
369.4

 

 

 

 

 
369.4

Total metallurgical

 
369.4

 

 

 

 

 
369.4

Other

 
0.9

 

 
0.1

 
3.5

 
(1.1
)
 
3.4

Revenues
$
305.1

 
$
370.3

 
$
373.7

 
$
208.5

 
$
156.1

 
$
(1.1
)
 
$
1,412.6

 
Nine Months Ended September 30, 2019
 
Seaborne Thermal Mining
 
Seaborne Metallurgical Mining
 
Powder River Basin Mining
 
Midwestern U.S. Mining
 
Western U.S. Mining
 
Corporate and Other (1)
 
Consolidated
 
(Dollars in millions)
Thermal coal
 
 
 
 
 
 
 
 
 
 
 
 
 
Domestic
$
110.9

 
$

 
$
903.4

 
$
522.3

 
$
417.0

 
$

 
$
1,953.6

Export
608.7

 

 

 

 
11.3

 

 
620.0

Total thermal
719.6

 

 
903.4

 
522.3

 
428.3

 

 
2,573.6

Metallurgical coal
 
 
 
 
 
 
 
 
 
 
 
 
 
Export

 
829.4

 

 

 

 

 
829.4

Total metallurgical

 
829.4

 

 

 

 

 
829.4

Other
1.1

 
2.3

 
0.1

 
0.3

 
19.9

 
79.3

 
103.0

Revenues
$
720.7

 
$
831.7

 
$
903.5

 
$
522.6

 
$
448.2

 
$
79.3

 
$
3,506.0

 
Nine Months Ended September 30, 2018
 
Seaborne Thermal Mining
 
Seaborne Metallurgical Mining
 
Powder River Basin Mining
 
Midwestern U.S. Mining
 
Western U.S. Mining
 
Corporate and Other (1)
 
Consolidated
 
(Dollars in millions)
Thermal coal
 
 
 
 
 
 
 
 
 
 
 
 
 
Domestic
$
112.0

 
$

 
$
1,084.4

 
$
606.2

 
$
410.9

 
$

 
$
2,213.5

Export
661.3

 

 

 
1.3

 
15.4

 

 
678.0

Total thermal
773.3

 

 
1,084.4

 
607.5

 
426.3

 

 
2,891.5

Metallurgical coal
 
 
 
 
 
 
 
 
 
 
 
 
 
Export

 
1,251.9

 

 

 

 

 
1,251.9

Total metallurgical

 
1,251.9

 

 

 

 

 
1,251.9

Other
0.6

 
2.1

 
0.1

 
0.2

 
13.1

 
25.2

 
41.3

Revenues
$
773.9

 
$
1,254.0

 
$
1,084.5

 
$
607.7

 
$
439.4

 
$
25.2

 
$
4,184.7



11


PEABODY ENERGY CORPORATION
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Revenue by initial contract duration was as follows:
 
Three Months Ended September 30, 2019
 
Seaborne Thermal Mining
 
Seaborne Metallurgical Mining
 
Powder River Basin Mining
 
Midwestern U.S. Mining
 
Western U.S. Mining
 
Corporate and Other (1)
 
Consolidated
 
(Dollars in millions)
One year or longer
$
158.5

 
$
193.3

 
$
287.8

 
$
171.6

 
$
143.6

 
$

 
$
954.8

Less than one year
90.9

 
22.1

 
45.8

 
4.2

 

 

 
163.0

Other (2)
0.1

 
0.9

 

 
0.2

 
6.8

 
(19.4
)
 
(11.4
)
Revenues
$
249.5

 
$
216.3

 
$
333.6

 
$
176.0

 
$
150.4

 
$
(19.4
)
 
$
1,106.4

 
Three Months Ended September 30, 2018
 
Seaborne Thermal Mining
 
Seaborne Metallurgical Mining
 
Powder River Basin Mining
 
Midwestern U.S. Mining
 
Western U.S. Mining
 
Corporate and Other (1)
 
Consolidated
 
(Dollars in millions)
One year or longer
$
235.3

 
$
199.5

 
$
330.2

 
$
205.3

 
$
146.6

 
$

 
$
1,116.9

Less than one year
69.8

 
169.9

 
43.5

 
3.1

 
6.0

 

 
292.3

Other (2)

 
0.9

 

 
0.1

 
3.5

 
(1.1
)
 
3.4

Revenues
$
305.1

 
$
370.3

 
$
373.7

 
$
208.5

 
$
156.1

 
$
(1.1
)
 
$
1,412.6

 
Nine Months Ended September 30, 2019
 
Seaborne Thermal Mining
 
Seaborne Metallurgical Mining
 
Powder River Basin Mining
 
Midwestern U.S. Mining
 
Western U.S. Mining
 
Corporate and Other (1)
 
Consolidated
 
(Dollars in millions)
One year or longer
$
480.2

 
$
668.8

 
$
837.6

 
$
497.6

 
$
422.2

 
$

 
$
2,906.4

Less than one year
239.4

 
160.6

 
65.8

 
24.7

 
6.1

 

 
496.6

Other (2)
1.1

 
2.3

 
0.1

 
0.3

 
19.9

 
79.3

 
103.0

Revenues
$
720.7

 
$
831.7

 
$
903.5

 
$
522.6

 
$
448.2

 
$
79.3

 
$
3,506.0

 
Nine Months Ended September 30, 2018
 
Seaborne Thermal Mining
 
Seaborne Metallurgical Mining
 
Powder River Basin Mining
 
Midwestern U.S. Mining
 
Western U.S. Mining
 
Corporate and Other (1)
 
Consolidated
 
(Dollars in millions)
One year or longer
$
585.8

 
$
852.1

 
$
984.4

 
$
587.0

 
$
400.4

 
$

 
$
3,409.7

Less than one year
187.5

 
399.8

 
100.0

 
20.5

 
25.9

 

 
733.7

Other (2)
0.6

 
2.1

 
0.1

 
0.2

 
13.1

 
25.2

 
41.3

Revenues
$
773.9

 
$
1,254.0

 
$
1,084.5

 
$
607.7

 
$
439.4

 
$
25.2

 
$
4,184.7

(1) 
Corporate and Other revenue includes gains and losses related to mark-to-market adjustments from economic hedge activities intended to hedge future coal sales. Refer to Note 8. “Derivatives and Fair Value Measurements” for additional information regarding the economic hedge activities.
(2) 
Other includes revenues from arrangements such as customer contract-related payments, royalties related to coal lease agreements, sales agency commissions, farm income and property and facility rentals, for which contract duration is not meaningful.
Committed Revenue from Contracts with Customers
The Company expects to recognize revenue subsequent to September 30, 2019 of approximately $4.8 billion related to contracts with customers in which volumes and prices per ton were fixed or reasonably estimable at September 30, 2019. Approximately 46% of such amount is expected to be recognized over the next twelve months and the remainder thereafter. Actual revenue related to such contracts may differ materially for various reasons, including price adjustment features for coal quality and cost escalations, volume optionality provisions and potential force majeure events. This estimate of future revenue does not include any revenue related to contracts with variable prices per ton that cannot be reasonably estimated, such as the majority of seaborne metallurgical and seaborne thermal coal contracts where pricing is negotiated or settled quarterly or annually.


12


PEABODY ENERGY CORPORATION
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Accounts Receivable
“Accounts receivable, net” at September 30, 2019 and December 31, 2018 consisted of the following:
 
September 30, 2019
 
December 31, 2018
 
(Dollars in millions)
Trade receivables, net
$
257.1

 
$
345.5

Miscellaneous receivables, net
36.3

 
104.9

Accounts receivable, net
$
293.4

 
$
450.4


Trade receivables, net presented above have been shown net of reserves of $0.1 million as of December 31, 2018. Trade receivables, net included no reserves as of September 30, 2019. Miscellaneous receivables, net presented above have been shown net of reserves of $4.3 million as of both September 30, 2019 and December 31, 2018. Included in “Operating costs and expenses” in the unaudited condensed consolidated statements of operations were credits for doubtful trade receivables of $0.4 million for the three months ended September 30, 2018 and $0.1 million and $0.2 million for the nine months ended September 30, 2019 and 2018, respectively. No charges for doubtful trade receivables were recognized during the three months ended September 30, 2019.
The Company also records long-term customer receivables related to the reimbursement of certain post-mining costs which are included within “Investments and other assets” in the accompanying condensed consolidated balance sheets. The balance of such receivables was $12.1 million and $11.1 million as of September 30, 2019 and December 31, 2018, respectively. In connection with the adoption of ASC 606, the Company records a portion of the consideration received as “Interest income” in the accompanying unaudited condensed consolidated statements of operations, due to the embedded financing element within the related contract. Interest income related to these arrangements amounted to $2.7 million and $2.1 million during the three months ended September 30, 2019 and 2018, respectively, and $8.0 million and $6.3 million during the nine months ended September 30, 2019 and 2018, respectively.
(5)    Discontinued Operations
Discontinued operations include certain former Seaborne Thermal Mining and Midwestern U.S. Mining segment assets that have ceased production and other previously divested legacy operations, including Patriot Coal Corporation and certain of its wholly-owned subsidiaries (Patriot).
Summarized Results of Discontinued Operations
Results from discontinued operations were as follows during the periods presented below:
 
Three Months Ended September 30,
 
Nine Months Ended September 30,
 
2019
 
2018
 
2019
 
2018
 
(Dollars in millions)
Loss from discontinued operations, net of income taxes
$
(3.8
)
 
$
(4.1
)
 
$
(10.6
)
 
$
(9.0
)



13


PEABODY ENERGY CORPORATION
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Assets and Liabilities of Discontinued Operations
Assets and liabilities classified as discontinued operations included in the Company’s condensed consolidated balance sheets were as follows:
 
September 30, 2019
 
December 31, 2018
 
(Dollars in millions)
Assets:
 
 
 
Other current assets
$
0.2

 
$

Total assets classified as discontinued operations
$
0.2

 
$

 
 
 
 
Liabilities:
 
 
 
Accounts payable and accrued expenses
$
53.7

 
$
54.0

Other noncurrent liabilities
127.0

 
141.1

Total liabilities classified as discontinued operations
$
180.7

 
$
195.1


Patriot-Related Matters
A significant portion of the liabilities in the table above relate to Patriot. In 2012, Patriot filed voluntary petitions for relief under Chapter 11 of Title 11 of the U.S. Code (the Bankruptcy Code). In 2013, the Company entered into a definitive settlement agreement (2013 Agreement) with Patriot and the United Mine Workers of America (UMWA), on behalf of itself, its represented Patriot employees and its represented Patriot retirees, to resolve all then-disputed issues related to Patriot’s bankruptcy. In May 2015, Patriot again filed voluntary petitions for relief under the Bankruptcy Code in the Eastern District of Virginia and subsequently initiated a process to sell some or all of its assets to qualified bidders. On October 9, 2015, Patriot’s bankruptcy court entered an order confirming Patriot’s plan of reorganization, which provided, among other things, for the sale of substantially all of Patriot’s assets to two different buyers.
Black Lung Occupational Disease Liabilities. Patriot had federal and state black lung occupational disease liabilities related to workers employed in periods prior to Patriot’s spin-off from the Company in 2007. Upon spin-off, Patriot indemnified the Company against any claim relating to these liabilities, which amounted to approximately $150 million at that time. The indemnification included any claim made by the U.S. Department of Labor (DOL) against the Company with respect to these obligations as a potentially liable operator under the Federal Coal Mine Health and Safety Act of 1969. The 2013 Agreement included Patriot’s affirmance of indemnities provided in the spin-off agreements, including the indemnity relating to such black lung liabilities; however, Patriot rejected this indemnity in its May 2015 bankruptcy.
By statute, the Company had secondary liability for the black lung liabilities related to Patriot’s workers employed by former subsidiaries of the Company. The Company’s accounting for the black lung liabilities related to Patriot is based on an interpretation of applicable statutes. Management believes that inconsistencies exist among the applicable statutes, regulations promulgated under those statutes and the DOL’s interpretative guidance. The Company has sought clarification from the DOL regarding these inconsistencies. The accounting for these liabilities could be reduced in the future. Whether the Company will ultimately be required to fund certain of those obligations in the future as a result of Patriot’s May 2015 bankruptcy remains uncertain. The amount of the liability, which was determined on an actuarial basis based on the best information available to the Company, was $103.8 million and $102.7 million at September 30, 2019 and December 31, 2018, respectively. While the Company has recorded a liability, it intends to review each claim on a case-by-case basis and contest liability estimates as appropriate. The amount of the Company’s recorded liability reflects only Patriot workers employed by former subsidiaries of the Company that are presently retired, disabled or otherwise not actively employed. The Company cannot reliably estimate the potential liabilities for Patriot’s workers employed by former subsidiaries of the Company that are presently active in the workforce because of the potential for such workers to continue to work for another coal operator that is a going concern.
Combined Benefit Fund (Combined Fund). The Combined Fund was created by the Coal Act in 1992 as a multi-employer plan to provide health care benefits to a closed group of retirees who last worked prior to 1976, as well as orphaned beneficiaries of bankrupt companies who were receiving benefits as orphans prior to the passage of the Coal Act. No new retirees will be added to this group, which includes retirees formerly employed by certain Patriot subsidiaries and their predecessors. Former employers are required to contribute to the Combined Fund according to a formula.


14


PEABODY ENERGY CORPORATION
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Under the terms of the Patriot spin-off, Patriot was primarily liable to the Combined Fund for the approximately $40 million of its subsidiaries’ obligations at that time. Once Patriot ceased meeting its obligations, the Company was held responsible for these costs and, as a result, recorded “Loss from discontinued operations, net of income taxes” charges of $0.2 million and during both the three months ended September 30, 2019 and 2018, and $0.5 million during both the nine months ended September 30, 2019 and 2018. The Company made payments into the fund of $1.4 million and $1.7 million during the nine months ended September 30, 2019 and 2018, respectively, and estimates that the annual cash cost to fund these potential Combined Fund liabilities will range between $1 million and $2 million in the near-term, with those premiums expected to decline over time because the fund is closed to new participants. The liability related to the fund was $15.4 million and $16.4 million at September 30, 2019 and December 31, 2018, respectively.
UMWA 1974 Pension Plan (UMWA Plan) Litigation. On July 16, 2015, a lawsuit was filed by the UMWA Plan, the UMWA 1974 Pension Trust (Trust) and the Trustees of the UMWA Plan and Trust (Trustees) in the United States District Court for the District of Columbia, against the Company, Peabody Holding Company, LLC, a subsidiary of the Company, and Arch Coal, Inc. (Arch). The plaintiffs sought, pursuant to the Employee Retirement Income Security Act of 1974 (ERISA) and the Multiemployer Pension Plan Amendments Act of 1980, a declaratory judgment that the defendants were obligated to arbitrate any opposition to the Trustees’ determination that the defendants had statutory withdrawal liability as a result of the 2015 Patriot bankruptcy. After a legal and arbitration process and with the approval of the U.S. Bankruptcy Court for the Eastern District of Missouri (Bankruptcy Court), on January 25, 2017, the UMWA Plan and the Company agreed to a settlement of the claim which entitled the UMWA Plan to $75 million to be paid by the Company in increments through 2021. The balance of the liability, on a discounted basis, was $24.9 million and $36.7 million at September 30, 2019 and December 31, 2018, respectively.
(6)     Inventories
Inventories as of September 30, 2019 and December 31, 2018 consisted of the following:
 
September 30, 2019
 
December 31, 2018
 
(Dollars in millions)
Materials and supplies
$
119.0

 
$
118.1

Raw coal
79.5

 
53.6

Saleable coal
96.3

 
108.5

Total
$
294.8

 
$
280.2

Materials and supplies inventories presented above have been shown net of reserves of $0.3 million and $0.2 million as of September 30, 2019 and December 31, 2018, respectively.
(7) Equity Method Investments
The Company had total equity method investments of $29.3 million and $45.9 million reflected in “Investments and other assets” in the condensed consolidated balance sheets as of September 30, 2019 and December 31, 2018, respectively, related to Middlemount Coal Pty Ltd (Middlemount). Included in “Loss (income) from equity affiliates” in the unaudited condensed consolidated statements of operations was a loss of $18.8 million and $5.3 million related to Middlemount during the three and nine months ended September 30, 2019, respectively and income of $17.4 million and $65.1 million during the three and nine months ended September 30, 2018, respectively. Middlemount’s standalone results include (on a 50% attributable basis):
 
Three Months Ended September 30,
 
Nine Months Ended September 30,
 
2019
 
2018
 
2019
 
2018
 
(Dollars in millions)
Depreciation, depletion and amortization and asset retirement obligation expenses
$
8.2

 
$
3.7

 
$
15.3

 
$
11.8

Net interest expense
2.4

 
2.8

 
6.4

 
10.0

Income tax (benefit) provision
(7.5
)
 
3.9

 
(1.6
)
 
15.4


The Company received cash payments from Middlemount of $14.7 million and $81.1 million during the nine months ended September 30, 2019 and 2018, respectively.


15


PEABODY ENERGY CORPORATION
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

One of the Company’s Australian subsidiaries and the other shareholder of Middlemount are parties to an agreement, as amended from time to time, to provide a revolving loan (Revolving Loans) to Middlemount not to exceed $50.0 million Australian dollars (Revolving Loan Limit). The Company’s participation in the Revolving Loans will not, at any time, exceed its 50% equity interest of the Revolving Loan Limit. The Revolving Loans bear interest at 15% per annum and expire on December 31, 2020. As of September 30, 2019 and December 31, 2018, the carrying value of the Revolving Loans due to the Company’s Australian subsidiary was $5.4 million and zero, respectively.
As of September 30, 2019, the Company had an existing reserve of approximately $20 million related to an uncertain tax position that had been the subject of an ongoing income tax audit on Middlemount. In October 2019, subsequent to the balance sheet date, Middlemount received notification that the Australian Taxation Office will no longer pursue its position. Therefore, the related tax reserve will be released in the fourth quarter of 2019.
(8) Derivatives and Fair Value Measurements
Derivatives
Corporate Risk Management Activities
From time to time, the Company may utilize various types of derivative instruments to manage its exposure to risks in the normal course of business, including (1) foreign currency exchange rate risk and the variability of cash flows associated with forecasted Australian dollar expenditures made in its Australian mining platform, (2) price risk of fluctuating coal prices related to forecasted sales or purchases of coal, or changes in the fair value of a fixed price physical sales contract, (3) price risk and the variability of cash flows related to forecasted diesel fuel purchased for use in its operations, and (4) interest rate risk on long-term debt. These risk management activities are actively monitored for compliance with the Company’s risk management policies.
As of September 30, 2019, the Company had currency options outstanding with an aggregate notional amount of $925.0 million Australian dollars to hedge currency risk associated with anticipated Australian dollar expenditures during the remainder of 2019 and over the first six months of 2020. The instruments are quarterly average rate options whereby the Company is entitled to receive payment on the notional amount should the quarterly average Australian dollar-to-U.S. dollar exchange rate exceed amounts ranging from $0.73 to $0.76 over the remainder of 2019 and over the first six months of 2020.
As of September 30, 2019, the Company held coal-related financial contracts related to a portion of its forecasted sales for an aggregate notional volume of 2.8 million tonnes. Such financial contracts include futures, forwards and options. Of the aggregate notional volume, 0.9 million tonnes will settle in 2019, 1.6 million tonnes will settle in 2020 and the remainder will settle in 2021.
The Company had no diesel fuel or interest rate derivatives in place as of September 30, 2019.
Coal Trading Activities
On a limited basis, the Company engages in the direct and brokered trading of coal and freight-related contracts (coal trading). Except those contracts for which the Company has elected to apply a normal purchases and normal sales exception, all derivative coal trading contracts are accounted for at fair value. Coal brokering is conducted both as principal and agent in support of various coal production-related activities that may involve coal produced from the Company’s mines, coal sourcing arrangements with third-party mining companies or offtake agreements with other coal producers. The Company also provides transportation-related services, which involve both financial derivative contracts and physical contracts. Collectively, coal and freight-related hedging activities include both economic hedging and, from time to time, cash flow hedging in support of the Company’s coal trading strategy. Revenues from such transactions include realized and unrealized gains and losses on derivative instruments, including those that arise from coal deliveries related to contracts accounted for on an accrual basis under the normal purchases and normal sales exception.
Offsetting and Balance Sheet Presentation
The Company has master netting agreements with certain of its counterparties which allow for the settlement of contracts in an asset position with contracts in a liability position in the event of default or termination. Such netting arrangements reduce the Company’s credit exposure related to these counterparties. For classification purposes, the Company records the net fair value of all the positions with a given counterparty as a net asset or liability in the condensed consolidated balance sheets.


16


PEABODY ENERGY CORPORATION
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

The Company’s coal trading assets and liabilities include financial instruments cleared through various exchanges, which involve the daily net settlement of open positions. The Company must post cash collateral in the form of initial margin, in addition to variation margin, on exchange-cleared positions that are in a net liability position and receives variation margin when in a net asset position. The Company also transacts in coal trading financial swaps and options through over-the-counter (OTC) markets with financial institutions and other non-financial trading entities under International Swaps and Derivatives Association (ISDA) Master Agreements, which contain symmetrical default provisions. Certain of the Company’s coal trading agreements with OTC counterparties also contain credit support provisions that may periodically require the Company to post, or entitle the Company to receive, variation margin. Physical coal and freight-related purchase and sale contracts included in the Company’s coal trading assets and liabilities are executed pursuant to master purchase and sale agreements that also contain symmetrical default provisions and allow for the netting and setoff of receivables and payables that arise during the same time period. The Company offsets its coal trading asset and liability derivative positions, and variation margin related to those positions, on a counterparty-by-counterparty basis in the condensed consolidated balance sheets.
The fair value of derivatives reflected in the accompanying condensed consolidated balance sheets are set forth in the table below.
 
September 30, 2019
 
December 31, 2018
 
Asset Derivative
 
Liability Derivative
 
Asset Derivative
 
Liability Derivative
 
(Dollars in millions)
Foreign currency option contracts
$
0.6

 
$

 
$
1.2

 
$

Coal contracts related to forecasted sales
19.5

 
(1.8
)
 
6.6

 
(23.1
)
Coal trading contracts
111.6

 
(95.8
)
 
59.7

 
(64.4
)
Total derivatives
131.7

 
(97.6
)
 
67.5

 
(87.5
)
Effect of counterparty netting
(97.6
)
 
97.6

 
(64.5
)
 
64.5

Variation margin (held) posted
(30.0
)
 

 

 
21.8

Net derivatives and margin as classified in the balance sheets
$
4.1

 
$

 
$
3.0

 
$
(1.2
)

The net amount of asset derivatives, net of margin, are included in “Other current assets” and the net amount of liability derivatives, net of margin, are included in “Accounts payable and accrued expenses” in the accompanying condensed consolidated balance sheets.
Effects of Derivatives on Measures of Financial Performance
Currently, the Company does not seek cash flow hedge accounting treatment for its currency- or coal-related derivative financial instruments and thus changes in fair value are reflected in current earnings.
The tables below show the amounts of pre-tax gains and losses related to the Company’s derivatives.
 
Three Months Ended September 30, 2019
 
Total (loss) gain recognized in income
 
Loss realized in income on derivatives
 
Unrealized gain (loss) recognized in income on derivatives
Financial Instrument
 
 
 
(Dollars in millions)
Foreign currency option contracts
$
(1.0
)
 
$
(1.3
)
 
$
0.3

Coal contracts related to forecasted sales
(22.7
)
 
(4.7
)
 
(18.0
)
Coal trading contracts
0.7

 
(1.3
)
 
2.0

Total
$
(23.0
)
 
$
(7.3
)
 
$
(15.7
)


17


PEABODY ENERGY CORPORATION
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

 
Three Months Ended September 30, 2018
 
Total (loss) gain recognized in income
 
(Loss) gain realized in income on derivatives
 
Unrealized gain (loss) recognized in income on derivatives
Financial Instrument
 
 
 
(Dollars in millions)
Foreign currency option contracts
$
(1.5
)
 
$
(1.8
)
 
$
0.3

Coal contracts related to forecasted sales
(4.5
)
 
22.3

 
(26.8
)
Coal trading contracts
0.3

 
(2.9
)
 
3.2

Total
$
(5.7
)
 
$
17.6

 
$
(23.3
)
 
Nine Months Ended September 30, 2019
 
Total (loss) gain recognized in income
 
(Loss) gain realized in income on derivatives
 
Unrealized gain recognized in income on derivatives
Financial Instrument
 
 
 
(Dollars in millions)
Foreign currency option contracts
$
(3.5
)
 
$
(3.7
)
 
$
0.2

Coal contracts related to forecasted sales
70.5

 
26.3

 
44.2

Coal trading contracts
(0.5
)
 
(12.0
)
 
11.5

Total
$
66.5

 
$
10.6

 
$
55.9

 
Nine Months Ended September 30, 2018
 
Total (loss) gain recognized in income
 
(Loss) gain realized in income on derivatives
 
Unrealized (loss) gain recognized in income on derivatives
Financial Instrument
 
 
 
(Dollars in millions)
Foreign currency option contracts
$
(7.9
)
 
$
(6.5
)
 
$
(1.4
)
Coal contracts related to forecasted sales
18.8

 
55.1

 
(36.3
)
Coal trading contracts
(2.4
)
 
(4.6
)
 
2.2

Total
$
8.5

 
$
44.0

 
$
(35.5
)

During the three and nine months ended September 30, 2019 and 2018, gains and losses on foreign currency option contracts were included in “Operating costs and expenses,” and gains and losses on coal contracts related to forecasted sales and those related to coal trading contracts were included in “Revenues” in the accompanying unaudited condensed consolidated statements of operations.
The Company classifies the cash effects of its derivatives within the “Cash Flows From Operating Activities” section of the unaudited condensed consolidated statements of cash flows.
Fair Value Measurements
The Company uses a three-level fair value hierarchy that categorizes assets and liabilities measured at fair value based on the observability of the inputs utilized in the valuation. These levels include: Level 1 - inputs are quoted prices in active markets for the identical assets or liabilities; Level 2 - inputs are other than quoted prices included in Level 1 that are directly or indirectly observable through market-corroborated inputs; and Level 3 - inputs are unobservable, or observable but cannot be market-corroborated, requiring the Company to make assumptions about pricing by market participants.


18


PEABODY ENERGY CORPORATION
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

The following tables set forth the hierarchy of the Company’s net financial asset positions for which fair value is measured on a recurring basis:
 
September 30, 2019
 
Level 1
 
Level 2
 
Level 3
 
Total
 
(Dollars in millions)
Foreign currency option contracts
$

 
$
0.6

 
$

 
$
0.6

Coal contracts related to forecasted sales

 
23.3

 

 
23.3

Coal trading contracts

 
(19.8
)
 

 
(19.8
)
Equity securities

 

 
10.0

 
10.0

Total net financial assets
$

 
$
4.1

 
$
10.0

 
$
14.1

 
 
 
 
 
 
 
 
 
December 31, 2018
 
Level 1
 
Level 2
 
Level 3
 
Total
 
(Dollars in millions)
Foreign currency option contracts
$

 
$
1.2

 
$

 
$
1.2

Coal contracts related to forecasted sales

 
(21.2
)
 

 
(21.2
)
Coal trading contracts

 
21.8

 

 
21.8

Equity securities

 

 
10.0

 
10.0

Total net financial assets
$

 
$
1.8

 
$
10.0

 
$
11.8


For Level 1 and 2 financial assets and liabilities, the Company utilizes both direct and indirect observable price quotes, including interest rate yield curves, exchange indices, broker/dealer quotes, published indices, issuer spreads, benchmark securities and other market quotes. In the case of certain debt securities, fair value is provided by a third-party pricing service. Below is a summary of the Company’s valuation techniques for Level 1 and 2 financial assets and liabilities:
Foreign currency option contracts: valued utilizing inputs obtained in quoted public markets (Level 2) except when credit and non-performance risk is considered to be a significant input, then the Company classifies such contracts as Level 3.
Coal contracts related to forecasted sales and coal trading contracts: generally valued based on unadjusted quoted prices in active markets (Level 1) or a valuation that is corroborated by the use of market-based pricing (Level 2) except when credit and non-performance risk is considered to be a significant input (greater than 10% of fair value), then the Company classifies as Level 3.
Investments in equity securities are based on observed prices in an inactive market (Level 3).
Other Financial Instruments. The following methods and assumptions were used by the Company in estimating fair values for other financial instruments as of September 30, 2019 and December 31, 2018:
Cash and cash equivalents, restricted cash, accounts receivable, including those within the Company’s accounts receivable securitization program, notes receivable and accounts payable have carrying values which approximate fair value due to the short maturity or the liquid nature of these instruments.
Long-term debt fair value estimates are based on observed prices for securities with an active trading market when available (Level 2), and otherwise on estimated borrowing rates to discount the cash flows to their present value (Level 3).


19


PEABODY ENERGY CORPORATION
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Market risk associated with the Company’s fixed- and variable-rate long-term debt relates to the potential reduction in the fair value and negative impact to future earnings, respectively, from an increase in interest rates. The fair value of debt, shown below, is principally based on reported market values, recently completed market transactions and estimates based on interest rates, maturities, credit risk and underlying collateral.
 
September 30, 2019
December 31, 2018
 
(Dollars in millions)
Total debt at par value
$
1,413.6

 
$
1,437.0

Less: Unamortized debt issuance costs and original issue discount
(60.8
)
 
(70.0
)
Net carrying amount
$
1,352.8

 
$
1,367.0

 
 
 
 
Estimated fair value
$
1,375.5

 
$
1,366.2


The Company’s risk management function, which is independent of the Company’s coal trading function, is responsible for valuation policies and procedures, with oversight from executive management. Generally, the Company’s Level 3 instruments or contracts are valued using bid/ask price quotations and other market assessments obtained from multiple, independent third-party brokers or other transactional data incorporated into internally-generated discounted cash flow models. Decreases in the number of third-party brokers or market liquidity could erode the quality of market information and therefore the valuation of the Company’s market positions. The Company’s valuation techniques include basis adjustments to the foregoing price inputs for quality, such as sulfur and ash content, location differentials, expressed as port and freight costs, and credit risk. The Company’s risk management function independently validates the Company’s valuation inputs, including unobservable inputs, with third-party information and settlement prices from other sources where available. A daily process is performed to analyze market price changes and changes to the portfolio. Further periodic validation occurs at the time contracts are settled with the counterparty. These valuation techniques have been consistently applied in all periods presented, and the Company believes it has obtained the most accurate information available for the types of derivative contracts held.
Significant increases or decreases in the inputs in isolation could result in a significantly higher or lower fair value measurement. The unobservable inputs do not have a direct interrelationship; therefore, a change in one unobservable input would not necessarily correspond with a change in another unobservable input.
The Company had no transfers between Levels 1, 2 and 3 during the three and nine months ended September 30, 2019 and 2018. The Company’s policy is to value all transfers between levels using the beginning of period valuation.
Credit and Nonperformance Risk. The fair value of the Company’s coal derivative assets and liabilities reflects adjustments for credit risk. The Company’s exposure is substantially with electric utilities, energy marketers, steel producers and nonfinancial trading houses. The Company’s policy is to independently evaluate each customer’s creditworthiness prior to entering into transactions and to regularly monitor the credit extended. If the Company engages in a transaction with a counterparty that does not meet its credit standards, the Company seeks to protect its position by requiring the counterparty to provide an appropriate credit enhancement. Also, when appropriate (as determined by its credit management function), the Company has taken steps to reduce its exposure to customers or counterparties whose credit has deteriorated and who may pose a higher risk of failure to perform under their contractual obligations. These steps include obtaining letters of credit or cash collateral (margin), requiring prepayments for shipments or the creation of customer trust accounts held for the Company’s benefit to serve as collateral in the event of a failure to pay or perform. To reduce its credit exposure related to trading and brokerage activities, the Company seeks to enter into netting agreements with counterparties that permit the Company to offset asset and liability positions with such counterparties and, to the extent required, the Company will post or receive margin amounts associated with exchange-cleared and certain OTC positions. The Company also continually monitors counterparty and contract non-performance risk, if present, on a case-by-case basis.
As of September 30, 2019, 57% of the Company’s credit exposure related to coal trading activities was with investment grade counterparties and 43% was with counterparties that are not rated.
Performance Assurances and Collateral
The Company is required by the exchanges upon which it transacts to post certain additional collateral, known as initial margin, which represents an estimate of potential future adverse price movements across the Company’s portfolio under normal market conditions. The Company posted initial margin of $12.8 million and $16.7 million as of September 30, 2019 and December 31, 2018, respectively, which is reflected in “Other current assets” in the condensed consolidated balance sheets. As of September 30, 2019 and December 31, 2018, the Company had posted $0.2 million and $2.2 million in excess of margin requirements, respectively.


20


PEABODY ENERGY CORPORATION
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

The Company is required to post variation margin on positions that are in a net liability position and is entitled to receive and hold variation margin on positions that are in a net asset position with an exchange and certain of its OTC derivative contract counterparties. As of September 30, 2019, the Company was in receipt of $30.0 million in variation margin, while it had posted $21.8 million of net variation margin at December 31, 2018.
Certain of the Company’s derivative trading instruments require the parties to provide additional performance assurances whenever a material adverse event jeopardizes one party’s ability to perform under the instrument. If the Company was to sustain a material adverse event (using commercially reasonable standards), its counterparties could request collateralization on derivative trading instruments in net liability positions which, based on aggregate fair values, would have required $0.1 million additional collateral postings to counterparties at September 30, 2019, and approximately $1.3 million at December 31, 2018. As of September 30, 2019 and December 31, 2018, the Company was not required to post collateral to counterparties for such positions.
(9)     Intangible Contract Assets and Liabilities
As described in Note 2. “Emergence from the Chapter 11 Cases and Fresh Start Reporting” in the Company’s Annual Report on Form 10-K for the year ended December 31, 2018 and Note 3. “Acquisition of Shoal Creek Mine,” the Company has recorded intangible assets and liabilities to reflect the fair value of certain U.S. coal supply agreements as a result of differences between contract terms and estimated market terms for the same coal products, and also recorded intangible liabilities related to unutilized capacity under its port and rail take-or-pay contracts. The balances, net of accumulated amortization, and respective balance sheet classifications at September 30, 2019 and December 31, 2018, are set forth in the following tables:
 
September 30, 2019
 
Assets
 
Liabilities
 
Net Total
 
(Dollars in millions)
Coal supply agreements
$
44.5

 
$
(23.4
)
 
$
21.1

Take-or-pay contracts

 
(41.2
)
 
(41.2
)
Total
$
44.5

 
$
(64.6
)
 
$
(20.1
)
 
 
 
 
 
 
Balance sheet classification:
 
 
 
 
 
Investments and other assets
$
44.5

 
$

 
$
44.5

Accounts payable and accrued expenses

 
(9.5
)
 
(9.5
)
Other noncurrent liabilities

 
(55.1
)
 
(55.1
)
Total
$
44.5

 
$
(64.6
)
 
$
(20.1
)
 
 
 
 
 
 
 
December 31, 2018
 
Assets
 
Liabilities
 
Net Total
 
(Dollars in millions)
Coal supply agreements
$
70.9

 
$
(32.9
)
 
$
38.0

Take-or-pay contracts

 
(57.1
)
 
(57.1
)
Total
$
70.9

 
$
(90.0
)
 
$
(19.1
)
 
 
 
 
 
 
Balance sheet classification:
 
 
 
 
 
Investments and other assets
$
70.9

 
$

 
$
70.9

Accounts payable and accrued expenses

 
(20.3
)
 
(20.3
)
Other noncurrent liabilities

 
(69.7
)
 
(69.7
)
Total
$
70.9

 
$
(90.0
)
 
$
(19.1
)



21


PEABODY ENERGY CORPORATION
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Amortization of the intangible assets and liabilities related to coal supply agreements occurs ratably based upon coal volumes shipped per contract and is recorded as a component of “Depreciation, depletion and amortization” in the accompanying unaudited condensed consolidated statements of operations. Such amortization amounted to $5.3 million and $24.0 million during the three months ended September 30, 2019 and 2018, respectively, and $16.9 million and $78.4 million during the nine months ended September 30, 2019 and 2018, respectively. The Company anticipates net amortization of sales contracts, based upon expected shipments, to be an expense of approximately $6 million during the remaining three months of 2019, and for the years 2020 through 2023, expense of approximately $11 million, $2 million, $1 million and $1 million, respectively.
Future unutilized capacity and the amortization periods related to the take-or-pay contract intangible liabilities are based upon estimates of forecasted usage. Such amortization, which is classified as a reduction to “Operating costs and expenses” in the accompanying unaudited condensed consolidated statements of operations, amounted to $2.7 million and $5.4 million during the three months ended September 30, 2019 and 2018, respectively, and $13.9 million and $21.5 million during the nine months ended September 30, 2019 and 2018, respectively. The Company anticipates net amortization of take-or-pay contract intangible liabilities to be approximately $3 million during the remaining three months of 2019, and for the years 2020 through 2023, approximately $8 million, $4 million, $3 million and $2 million, respectively, and $21 million thereafter.
(10) Property, Plant, Equipment and Mine Development
The composition of property, plant, equipment and mine development, net, as of September 30, 2019 and December 31, 2018 is set forth in the table below:
 
September 30, 2019
 
December 31, 2018
 
(Dollars in millions)
Land and coal interests
$
4,172.0

 
$
4,148.8

Buildings and improvements
554.7

 
559.3

Machinery and equipment
1,556.4

 
1,456.3

Less: Accumulated depreciation, depletion and amortization
(1,383.9
)
 
(957.4
)
Property, plant, equipment and mine development, net
$
4,899.2

 
$
5,207.0


(11) Leases
The Company has operating and finance leases for mining and non-mining equipment, office space and certain other facilities under various non-cancellable agreements. Historically, the majority of the Company’s leases have been accounted for as operating leases.
The Company determines if an arrangement is a lease at inception. ROU assets represent the Company's right to use an underlying asset for the lease term and lease liabilities represent its obligation to make lease payments arising from the lease. Operating lease ROU assets and liabilities are recognized at the lease commencement date based on the present value of lease payments over the lease term. For the purpose of calculating such present values, lease payments include components that vary based upon an index or rate, using the prevailing index or rate at the commencement date, and exclude components that vary based upon other factors. As most of its leases do not contain a readily determinable implicit rate, the Company uses its incremental borrowing rate at commencement to determine the present value of lease payments. The Company's leases may include options to extend or terminate the lease, and such options are reflected in the term when their exercise is reasonably certain. Lease expense is recognized on a straight-line basis over the lease term.
For certain equipment leases, the Company applies a portfolio approach to effectively account for the operating lease ROU assets and liabilities.
The Company and certain of its subsidiaries have guaranteed other subsidiaries’ performance under various lease obligations. Certain lease agreements are subject to the restrictive covenants of the Company’s credit facilities and include cross-acceleration provisions, under which the lessor could require remedies including, but not limited to, immediate recovery of the present value of any remaining lease payments. The Company typically agrees to indemnify lessors for the value of the property or equipment leased, should the property be damaged or lost during the course of the Company’s operations. The Company expects that losses with respect to leased property, if any, may be covered by insurance (subject to deductibles). Aside from indemnification of the lessor for the value of the property leased, the Company’s maximum potential obligations under its leases are equal to the respective future minimum lease payments, and the Company assumes that no amounts could be recovered from third parties. In this regard, the Company has recorded provisions amounting to $50.7 million related to the loss of leased equipment at its North Goonyella Mine as described in Note 16. “Other Events.”


22


PEABODY ENERGY CORPORATION
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

One of the Company’s operating lease agreements for underground mining equipment in Australia entered into in 2013 requires contingent rent to be paid only if and when certain coal is mined at a specified margin as defined in the agreements. There was no contingent expense related to that arrangement for the periods listed below.
The components of lease expense during the three and nine months ended September 30, 2019 were as follows:
 
Three Months Ended September 30, 2019
 
Nine Months Ended September 30, 2019
 
(Dollars in millions)
Operating lease cost:
 
 
 
Operating lease cost
$
9.9

 
$
33.9

Short-term lease cost
15.8

 
34.7

Variable lease cost
2.0

 
16.6

Sublease income
(1.0
)
 
(1.9
)
Total operating lease cost
$
26.7

 
$
83.3

 
 
 
 
Finance lease cost:
 
 
 
Amortization of right-of-use assets
$
3.4

 
$
12.0

Interest on lease liabilities
0.3

 
1.2

Total finance lease cost
$
3.7

 
$
13.2


Rental expense under operating leases, including expense related to short-term operating leases, was $36.3 million and $122.6 million during the three and nine months ended September 30, 2018, respectively.
Supplemental balance sheet information related to leases at September 30, 2019 was as follows:
 
September 30, 2019
 
(Dollars in millions)
Operating leases:
 
Operating lease right-of-use assets
$
85.6

 
 
Accounts payable and accrued expenses
$
27.6

Operating lease liabilities, less current portion
55.1

Total operating lease liabilities
$
82.7

 
 
Finance leases:
 
Property, plant, equipment and mine development
$
95.4

Accumulated depreciation
(49.3
)
Property, plant, equipment and mine development, net
$
46.1

 
 
Current portion of long-term debt
$
19.4

Long-term debt, less current portion
0.2

Total finance lease liabilities
$
19.6

 
 
Weighted average remaining lease term (years)
 
Operating leases
4.0

Finance leases
0.6

 
 
Weighted average discount rate
 
Operating leases
7.3
%
Finance leases
5.9
%



23


PEABODY ENERGY CORPORATION
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Supplemental cash flow information related to leases during the three and nine months ended September 30, 2019 was as follows:
 
Three Months Ended September 30, 2019
 
Nine Months Ended September 30, 2019
 
(Dollars in millions)
Cash paid for amounts included in the measurement of lease liabilities:
 
 
 
Operating cash flows for operating leases
$
8.4

 
$
41.8

Operating cash flows for finance leases
0.3

 
1.2

Financing cash flows for finance leases
5.6

 
24.0

 
 
 
 
Right-of-use assets obtained in exchange for lease obligations:
 
 
 
Operating leases
3.4

 
9.7

Finance leases
0.3

 
0.4


The Company's leases have remaining lease terms of 1 year to 11.6 years, some of which include options to extend the terms deemed reasonably certain of exercise. Maturities of lease liabilities were as follows:
Period Ending December 31,
 
Operating Leases
 
Finance Leases
 
 
(Dollars in millions)
2019
 
$
8.8

 
$
5.9

2020
 
30.9

 
13.9

2021
 
19.7

 
0.1

2022
 
13.0

 
0.1

2023
 
12.1

 
0.1

2024 and thereafter
 
12.1

 

Total lease payments
 
96.6

 
20.1

Less imputed interest
 
(13.9
)
 
(0.5
)
Total lease liabilities
 
$
82.7

 
$
19.6


(12Income Taxes
The Company’s income tax provision of $4.2 million and $13.8 million for the three months ended September 30, 2019 and 2018, respectively, included a tax provision of $0.1 million and a tax benefit of $0.3 million, respectively, related to the remeasurement of foreign income tax accounts. The Company’s income tax provision of $26.0 million and $31.3 million for the nine months ended September 30, 2019 and 2018, respectively, included a tax benefit of $0.2 million for both periods related to the remeasurement of foreign income tax accounts. The Company’s effective tax rate before remeasurement for the nine months ended September 30, 2019 is based on the Company’s estimated full year effective tax rate, comprised of expected statutory tax provision, offset by foreign rate differential and changes in valuation allowances.


24


PEABODY ENERGY CORPORATION
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(13)     Long-term Debt 
The Company’s total indebtedness as of September 30, 2019 and December 31, 2018 consisted of the following:
 
September 30, 2019
 
December 31, 2018
 
(Dollars in millions)
6.000% Senior Secured Notes due March 2022
$
500.0

 
$
500.0

6.375% Senior Secured Notes due March 2025
500.0

 
500.0

Senior Secured Term Loan due 2025, net of original issue discount
393.0

 
395.9

Finance lease obligations
19.6

 
40.0

Less: Debt issuance costs
(59.8
)
 
(68.9
)
 
1,352.8

 
1,367.0

Less: Current portion of long-term debt
23.4

 
36.5

Long-term debt
$
1,329.4

 
$
1,330.5


6.000% and 6.375% Senior Secured Notes
On February 15, 2017, the Company entered into an indenture (the Indenture) with Wilmington Trust, National Association, as trustee, relating to its issuance of $500.0 million aggregate principal amount of 6.000% senior secured notes due 2022 (the 2022 Notes) and $500.0 million aggregate principal amount of 6.375% senior secured notes due 2025 (the 2025 Notes and, together with the 2022 Notes, the Senior Notes). The Senior Notes were sold on February 15, 2017 in a private transaction exempt from the registration requirements of the Securities Act of 1933.
The Senior Notes were issued at par value. The Company paid aggregate debt issuance costs of $49.5 million related to the offering, which are being amortized over the respective terms of the Senior Notes. Interest payments on the Senior Notes are scheduled to occur each year on March 31 and September 30 until maturity. During the three months ended September 30, 2019 and 2018, the Company recorded interest expense of $18.1 million and $19.1 million, respectively, and during the nine months ended September 30, 2019 and 2018, the Company recorded interest expense of $54.2 million and $54.0 million, respectively, related to the Senior Notes.
The Company may redeem the 2022 Notes during 2019, in whole or in part, at 103.0% of par, in 2020 at 101.5% of par, and in 2021 and thereafter at par. The 2025 Notes may be redeemed, in whole or in part, beginning in 2020 at 104.8% of par, in 2021 at 103.2% of par, in 2022 at 101.6% of par, and in 2023 and thereafter at par. In addition, prior to the first date on which the Senior Notes are redeemable at the redemption prices noted above, the Company may also redeem some or all of the Senior Notes at a calculated make-whole premium, plus accrued and unpaid interest.
On August 9, 2018, the Company executed an amendment to the Indenture following the solicitation of consents from the requisite majorities of holders of each series of Senior Notes. The amendment permits a category of restricted payments at any time not to exceed the sum of $650.0 million, plus an additional $150.0 million per calendar year, commencing with calendar year 2019, with unused amounts in any calendar year carrying forward to and available for restricted payments in any subsequent calendar year. The Company paid consenting Senior Note holders $10.00 in cash per $1,000 principal amount of 2022 Notes and $30.00 in cash per $1,000 principal amount of 2025 Notes, which amounted to $19.8 million in aggregate consent payments. Such consent payments were capitalized as additional debt issuance costs to be amortized over the respective terms of the Senior Notes. The Company also expensed $1.5 million of other payments associated with the amendment to “Interest expense” in the accompanying unaudited condensed consolidated statements of operations during 2018.
The Indenture contains customary conditions of default and imposes certain restrictions on the Company’s activities, including its ability to incur liens, incur debt, make investments, engage in fundamental changes such as mergers and dissolutions, dispose of assets, enter into transactions with affiliates and make certain restricted payments, such as cash dividends and share repurchases.


25


PEABODY ENERGY CORPORATION
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

The Senior Notes rank senior in right of payment to any subordinated indebtedness and equally in right of payment with any senior indebtedness to the extent of the collateral securing that indebtedness. The Senior Notes are jointly and severally and fully and unconditionally guaranteed on a senior secured basis by substantially all of the Company’s material domestic subsidiaries and secured by first priority liens over (1) substantially all of the assets of the Company and the guarantors, except for certain excluded assets, (2) 100% of the capital stock of each domestic restricted subsidiary of the Company, (3) 100% of the non-voting capital stock of each first tier foreign subsidiary of the Company or a foreign subsidiary holding company and no more than 65% of the voting capital stock of each first tier foreign subsidiary of the Company or a foreign subsidiary holding company, (4) a legal charge of 65% of the voting capital stock and 100% of the non-voting capital stock of Peabody Investments (Gibraltar) Limited and (5) all intercompany debt owed to the Company or any guarantor, in each case, subject to certain exceptions. The obligations under the Senior Notes are secured on a pari passu basis by the same collateral securing the Credit Agreement (as defined below), subject to certain exceptions.
Credit Agreement
The Company entered into a credit agreement, dated as of April 3, 2017, among the Company, as borrower, Goldman Sachs Bank USA, as administrative agent, and other lenders party thereto (the Credit Agreement). The Credit Agreement originally provided for a $950.0 million senior secured term loan (the Senior Secured Term Loan), which was to mature in 2022 prior to the amendments described below.
Following the voluntary prepayments and amendments described below, the Credit Agreement provided for a $400.0 million first lien senior secured term loan, which bore interest at LIBOR plus 2.75% per annum as of September 30, 2019. During the three months ended September 30, 2019 and 2018, the Company recorded interest expense of $5.6 million and $5.1 million, respectively, and during the nine months ended September 30, 2019 and 2018, the Company recorded interest expense of $17.0 million and $18.5 million, respectively, related to the Senior Secured Term Loan.
Proceeds from the Senior Secured Term Loan were received net of an original issue discount and deferred financing costs of $37.3 million that are being amortized over its term. The loan principal is payable in quarterly installments plus accrued interest through December 2024 with the remaining balance due in March 2025. The loan principal was voluntarily prepayable at 101% of the principal amount repaid if prepayment occurred prior to October 2018 (subject to certain exceptions, including prepayments made with internally generated cash) and is voluntarily prepayable at any time thereafter without premium or penalty. The Senior Secured Term Loan may require mandatory principal prepayments of up to 75% of Excess Cash Flow (as defined in the Credit Agreement) for any fiscal year if the Company’s Total Leverage Ratio (as defined in the Credit Agreement and calculated at December 31, net of any unrestricted cash) is greater than 2.00:1.00. The mandatory principal prepayment requirement changes to (i) 50% of Excess Cash Flow if the Company’s Total Leverage Ratio is less than or equal to 2.00:1.00 and greater than 1.50:1.00, (ii) 25% of Excess Cash Flow if the Company’s Total Leverage Ratio is less than or equal to 1.50:1.00 and greater than 1.00:1.00, or (iii) zero if the Company’s Total Leverage Ratio is less than or equal to 1.00:1.00. If required, mandatory prepayments resulting from Excess Cash Flows are payable within 100 days after the end of each fiscal year. The calculation of mandatory prepayments would be reduced commensurately by the amount of previous voluntary prepayments. In certain circumstances, the Senior Secured Term Loan requires that Excess Proceeds (as defined in the Credit Agreement) of $10.0 million or greater received from sales of Company assets be applied against the loan principal, unless such proceeds are reinvested within one year. The Senior Secured Term Loan also requires that any net insurance proceeds be applied against the loan principal, unless such proceeds are reinvested within one year.
The Credit Agreement contains customary conditions of default and imposes certain restrictions on the Company’s activities, including its ability to incur liens, incur debt, make investments, engage in fundamental changes such as mergers and dissolutions, dispose of assets, enter into transactions with affiliates, and make certain restricted payments, such as cash dividends and share repurchases. Obligations under the Credit Agreement are secured on a pari passu basis by the same collateral securing the Senior Notes.
Since entering into the Credit Agreement, the Company has repaid $556.0 million of the original $950.0 million loan principal amount on the Senior Secured Term Loan in various installments, including $546.0 million of voluntary prepayments. In September 2017, the Company entered into an amendment to the Credit Agreement which permitted the Company to add an incremental revolving credit facility in addition to the Company’s ability to add one or more incremental term loan facilities under the Credit Agreement. The incremental revolving credit facility and/or incremental term loan facilities originally allowed for an aggregate principal amount of up to $350.0 million plus additional amounts so long as the Company remains in compliance with Total Leverage Ratio requirements as set forth in the Credit Agreement. The amendment also made available an additional restricted payment basket that permits additional repurchases, dividends or other distributions with respect to the Company’s common and preferred stock in an aggregate amount up to $450.0 million so long as the Company’s Fixed Charge Coverage Ratio (as defined in the Credit Agreement) is at least 2.00:1.00 on a pro forma basis.


26


PEABODY ENERGY CORPORATION
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

In April 2018, the Company entered into another amendment to the Credit Agreement which lowered the interest rate on the Senior Secured Term Loan to its current level of LIBOR plus 2.75% and eliminated an existing 1.0% LIBOR floor. The amendment also extended the maturity of the Senior Secured Term Loan by three years to 2025 and eliminated previous capital expenditure restriction covenants on both the Senior Secured Term Loan and the incremental revolving credit facility described below. In connection with this amendment, the Company voluntarily repaid $46.0 million of principal on the Senior Secured Term Loan.
During the fourth quarter of 2017, the Company entered into the incremental revolving credit facility (the Revolver) for an aggregate commitment of $350.0 million for general corporate purposes and paid debt issuance costs of $4.7 million. In September 2019, the Company entered into an amendment to the Credit Agreement which increased the aggregate commitment amount under the Revolver to $565.0 million and extended the maturity date on $540.0 million of the commitments from November 2020 to September 2023. The maturity date for the remaining $25.0 million commitment is November 2020. The Company incurred $5.7 million of additional debt issuance costs in connection with the amendment. The Revolver currently permits loans which bear interest at LIBOR plus 3.25%, as well as letters of credit which incur combined fees of 3.375% per annum. Unused capacity under the Revolver bears a commitment fee of 0.5% per annum. As a result of the amendment, such loans, letters of credit and unused capacity related to the $540.0 million of extended commitments will bear interest and incur fees at rates dependent upon the Company’s First Lien Leverage Ratio (as defined in the Credit Agreement) beginning in 2020. The Revolver is also subject to a 2.00:1.00 Total Leverage Ratio requirement (as defined in the Credit Agreement), modified to limit unrestricted cash netting to $800.0 million.
To date, the Revolver has only been utilized for letters of credit, including $66.4 million outstanding at September 30, 2019. Such letters of credit were primarily in support of the Company’s reclamation obligations, as further described in Note 18. “Financial Instruments and Other Guarantees.” During the three months ended September 30, 2019 and 2018, the Company recorded interest expense and fees of $1.4 million and $1.3 million, respectively, and during the nine months ended September 30, 2019 and 2018, the Company recorded interest expense and fees of $4.5 million and $4.3 million, respectively, related to the Revolver.
Restricted Payments Under the Senior Notes and Credit Agreement
In addition to the $450.0 million restricted payment basket provided for under the September 2017 amendment, the Credit Agreement provides a builder basket for additional restricted payments subject to a maximum Total Leverage Ratio of 2.00:1.00 (as defined in the Credit Agreement).
In addition to the $650.0 million restricted payment basket, plus an additional $150.0 million per calendar year, provided under the August 2018 amendment, the Indenture provides a builder basket for restricted payments that is calculated based upon the Company’s Consolidated Net Income, and is subject to a Fixed Charge Coverage Ratio of at least 2.25:1.00 (as defined in the Indenture).
Further, under both the Indenture and Credit Agreement, additional restricted payments are permitted through a $50.0 million general basket and an annual aggregate $25.0 million basket which allows dividends and common stock repurchases. The payment of dividends and purchases of common stock under this annual aggregate $25.0 million basket are permitted so long as the Company’s Total Leverage Ratio would not exceed 1.25:1.00 on a pro forma basis (as defined in the Credit Agreement and Indenture).
Finance Lease Obligations
Refer to Note 11. “Leases” for additional information associated with the Company’s finance leases, which pertain to the financing of mining equipment used in operations.
(14Pension and Postretirement Benefit Costs
The components of net periodic pension and postretirement benefit costs, excluding the service cost for benefits earned, are included in “Net periodic benefit costs, excluding service cost” in the unaudited condensed consolidated statements of operations.


27


PEABODY ENERGY CORPORATION
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Net periodic pension cost (benefit) included the following components:
 
Three Months Ended September 30,
 
Nine Months Ended September 30,
 
2019
 
2018
 
2019
 
2018
 
(Dollars in millions)
Service cost for benefits earned
$
0.5

 
$
0.6

 
$
1.5

 
$
1.7

Interest cost on projected benefit obligation
8.4

 
7.9

 
25.1

 
23.6

Expected return on plan assets
(7.9
)
 
(10.7
)
 
(23.5
)
 
(32.1
)
Net periodic pension cost (benefit)
$
1.0

 
$
(2.2
)
 
$
3.1

 
$
(6.8
)

Annual contributions to the qualified plans are made in accordance with minimum funding standards and the Company’s agreement with the Pension Benefit Guaranty Corporation. Funding decisions also consider certain funded status thresholds defined by the Pension Protection Act of 2006 (generally 80%). As of September 30, 2019, the Company’s qualified plans were expected to be at or above the Pension Protection Act thresholds. Minimum funding standards are legislated by ERISA and are modified by pension funding stabilization provisions included in the Moving Ahead for Progress in the 21st Century Act of 2012, the Highway and Transportation Funding Act of 2014 and the Bipartisan Budget Act of 2015. The Company is not required to make any contributions to its qualified pension plans in 2019 based on minimum funding requirements; however, during the nine months ended September 30, 2019, the Company made a discretionary contribution of $20.0 million to one of its qualified pension plans.
Net periodic postretirement benefit cost included the following components:
 
Three Months Ended September 30,
 
Nine Months Ended September 30,
 
2019
 
2018
 
2019
 
2018
 
(Dollars in millions)
Service cost for benefits earned
$
1.2

 
$
2.1

 
$
3.6

 
$
6.2

Interest cost on accumulated postretirement benefit obligation
6.3

 
7.0

 
18.9

 
21.2

Expected return on plan assets
(0.2
)
 

 
(0.4
)
 

Amortization of prior service credit
(2.2
)
 

 
(6.6
)
 

Net periodic postretirement benefit cost
$
5.1

 
$
9.1

 
$
15.5

 
$
27.4


In October 2018, the Company amended its postretirement health care benefit plan which reduced its accumulated postretirement benefit obligation, as further described in Note 17. “Postretirement Health Care and Life Insurance Benefits” in the Company’s Annual Report on Form 10-K for the year ended December 31, 2018. The reduction in liability has been recorded with an offsetting balance in “Accumulated other comprehensive income,” net of a deferred tax provision, and is being amortized to earnings over an average remaining service period to full eligibility for participating employees.
In 2018, the Company established a Voluntary Employees Beneficiary Association (VEBA) trust to pre-fund a portion of benefits for non-represented retirees. During the nine months ended September 30, 2019, the Company made a pre-funding contribution of $17.0 million to the VEBA.


28


PEABODY ENERGY CORPORATION
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(15Accumulated Other Comprehensive Income
The following table sets forth the after-tax components of accumulated other comprehensive income and changes thereto recorded during the nine months ended September 30, 2019:
 
Foreign Currency Translation
Adjustment
 
Prior Service
Credit (Cost) Associated
with
Postretirement
Plans
 
Total Accumulated Other Comprehensive Income
 
(Dollars in millions)
December 31, 2018
$
(4.5
)
 
$
44.6

 
$
40.1

Reclassification from other comprehensive income to earnings

 
(6.6
)
 
(6.6
)
Current period change
(1.7
)
 

 
(1.7
)
September 30, 2019
$
(6.2
)
 
$
38.0

 
$
31.8


Postretirement health care and life insurance benefits reclassified from other comprehensive income to earnings of $2.2 million and $6.6 million during the three and nine months ended September 30, 2019, respectively, are included in “Net periodic benefit costs, excluding service cost” in the unaudited condensed consolidated statements of operations.
(16Other Events
PRB Colorado Joint Venture with Arch
On June 18, 2019, the Company entered into a definitive implementation agreement (the Implementation Agreement) with Arch, to establish a joint venture that will combine the respective Powder River Basin and Colorado mining operations of Peabody and Arch. Pursuant to the terms of the Implementation Agreement, Peabody will hold a 66.5% economic interest in the joint venture and Arch will hold a 33.5% economic interest. The Company expects to proportionally consolidate the entity based upon its economic interest. Governance of the joint venture will be overseen by the joint venture’s board of managers, which will be comprised of Peabody and Arch representatives with voting powers proportionate with the companies’ economic interests. Peabody will manage the operations of the joint venture, subject to the supervision of the joint venture’s board of managers.
Formation of the joint venture is subject to customary closing conditions, including the termination or expiration of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, the receipt of certain other required regulatory approvals and the absence of injunctions or other legal restraints preventing the formation of the joint venture. The proposed joint venture is progressing through the U.S. Federal Trade Commission regulatory review process which is anticipated to conclude during the first half of 2020, and which would result in the clearance to form the joint venture or litigation to block its execution. The existing outstanding indebtedness of both Peabody and Arch limits significant transactions such as the joint venture, and accordingly, formation is subject to Peabody and Arch amending such outstanding indebtedness under agreeable terms. In September 2019, the Company amended its Credit Agreement to expressly permit formation of the joint venture and is exploring various alternatives under the Indenture governing the Senior Notes. At such time as control over the existing operations is exchanged, the Company will account for its interest in the combined operations at fair value, which could result in a significant loss.
North Goonyella
The Company’s North Goonyella Mine in Queensland, Australia experienced a fire in a portion of the mine during September 2018. Mining operations have been suspended since September 2018. No mine personnel were physically harmed by the September 2018 events. On November 13, 2018, the Queensland Mine Inspectorate (QMI) initiated an investigation into the events that occurred at the mine to determine the cause of the event, assess the response to it and make recommendations to reduce the possibility of future incidents and improve response.
During the first quarter of 2019, the Company completed segmenting of the mine into multiple zones to facilitate a phased re-ventilation and re-entry of the mine. The Company commenced re-ventilation of the first zone of the mine during the second quarter of 2019 and subsequently re-entered the area in July 2019. Following these activities and a subsequent detailed assessment, the Company concluded during the fourth quarter of 2019 that due to the time, cost and required regulatory approach to ventilate and re-enter the entire mine, the Company will not pursue attempts to access certain portions of the mine through existing mine workings, but will instead move to the southern panels.


29


PEABODY ENERGY CORPORATION
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

During the year ended December 31, 2018, the Company recorded $58.0 million in containment and idling costs related to the events at North Goonyella Mine and a provision of $66.4 million for expected equipment losses. The portion recorded during the three and nine months ended September 30, 2018 amounted to $9.0 million in containment and idling costs and a provision of $49.3 million for expected equipment losses. During the three and nine months ended September 30, 2019, the Company recorded an additional $29.3 million and $94.6 million, respectively, in containment and idling costs, and an additional provision of $24.7 million related to equipment losses was recorded during the nine months ended September 30, 2019 as more information became available. The combined provision includes $50.7 million for the estimated cost to replace leased equipment, $23.2 million related to the cost of Company-owned equipment and $17.2 million of other charges, which represents the best estimate of loss based on the assessments made at September 30, 2019. Given the revision in its approach to accessing the remaining reserves made during the fourth quarter of 2019, the Company recorded an additional provision for equipment losses of approximately $60 million, primarily related to unrecoverable longwall panel development, subsequent to September 30, 2019.
In the event that no future mining occurs at the North Goonyella Mine, the Company may record additional charges for the remaining carrying value of the North Goonyella Mine of up to approximately $272 million. Incremental exposures above the aforementioned include take-or-pay obligations and other costs associated with idling or closing the mine.
In March 2019, the Company entered into an insurance claim settlement agreement with its insurers and various re-insurers under a combined property damage and business interruption policy and recorded a $125 million insurance recovery, the maximum amount available under the policy above a $50 million deductible. The Company has collected the full amount of the recovery.
On April 30, 2019, Peabody (Bowen) Pty Ltd entered into an option exercise and release agreement with Yancoal Technology Development Pty Ltd pursuant to which Peabody (Bowen) Pty Ltd exercised an option to acquire from Yancoal Technology Development Pty Ltd the longwall mining equipment used under license at the North Goonyella Mine for $54.2 million, which was consistent with what the Company recorded as a provision for equipment losses for the related impaired assets.
Divestitures
In June 2018, Peabody entered into an agreement to sell approximately 23 million tonnes of metallurgical coal resources adjacent to its Millennium Mine to Stanmore Coal Limited (Stanmore) for approximately $22 million. The sale was completed in July 2018, and the Company recorded a gain of $20.5 million which is included within “Net gain on disposals” in the accompanying unaudited condensed consolidated statements of operations for the three and nine months ended September 30, 2018.
On February 6, 2018, the Company sold its 50% interest in the Red Mountain Joint Venture (RMJV) with BHP Billiton Mitsui Coal Pty Ltd (BMC) for $20.0 million and recorded a gain of $7.1 million, which is included within “Net gain on disposals” in the accompanying unaudited condensed consolidated statements of operations for the nine months ended September 30, 2018. RMJV operated the coal handling and preparation plant utilized by the Company’s Millennium Mine. BMC assumed the reclamation obligations and other commitments associated with the assets of RMJV. The Millennium Mine will have continued usage of the coal handling and preparation plant and the associated rail loading facility until the end of 2019 via a coal washing take-or-pay agreement with BMC.
In January 2018, Peabody entered into an agreement to sell its share in certain surplus land assets in Queensland’s Bowen Basin to Pembroke Resources South Pty Ltd for approximately $37 million Australian dollars, net of transaction costs. The necessary approval of the Australian Foreign Investment Review Board to complete the transaction was received on March 29, 2018, satisfying all the conditions precedent to the sale, and the Company recorded a gain of $20.6 million, which is included within “Net gain on disposals” in the accompanying unaudited condensed consolidated statements of operations for the nine months ended September 30, 2018.
United Wambo Joint Venture with Glencore
In 2014, the Company agreed to establish an unincorporated joint venture project with Glencore plc (Glencore), in which the Company holds a 50% interest, to combine the existing operations of the Company’s Wambo Open-Cut Mine in Australia with the adjacent coal reserves of Glencore’s United Mine. Glencore will manage the operations of the joint venture. The joint venture is expected to be formed during 2019, subject to substantive contingencies for the requisite regulatory and permitting approvals. Mining tenements will be contributed at formation and open-cut operations will be transitioned at first scheduled coal delivery date of joint venture operations. The Company will account for the components of the transaction at fair value, which could result in a gain or loss.


30


PEABODY ENERGY CORPORATION
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Asset Impairment and At-Risk Assets
In addition to the provision for North Goonyella equipment losses described above, the Company recorded $20.0 million of asset impairment charges during the three and nine months ended September 30, 2019 related to the remaining probability-weighted discounted cash flows of its Wildcat Hills Underground Mine, which the Company has announced will likely close in the fourth quarter of 2019. No asset impairment charges were recorded during the three and nine months ended September 30, 2018. Due to the unobservable inputs within the modeling used to determine fair market values utilized in the Company's asset impairment analyses, such fair values would be considered Level 3 within the fair value hierarchy.
The Company has identified certain assets with an aggregate carrying value of approximately $358 million at September 30, 2019 in its Midwestern U.S. Mining, Western U.S. Mining and Corporate and Other segments whose recoverability is most sensitive to coal pricing, cost pressures and customer concentration risk. The Company conducted a review of those assets for recoverability as of September 30, 2019 and determined that no further impairment charges were necessary as of that date.
(17Earnings per Share (EPS)
Basic EPS is computed based on the weighted average number of shares of common stock outstanding during the period. Diluted EPS is computed based on the weighted average number of shares of common stock plus the effect of dilutive potential common shares outstanding. As such, the Company includes the share-based compensation awards in its potentially dilutive securities. Dilutive securities are not included in the computation of loss per share when a company reports a net loss from continuing operations as the impact would be anti-dilutive.
During the periods which included the Company’s convertible preferred stock, basic and diluted EPS were computed using the two-class method, which is an earnings allocation that determines EPS for each class of common stock and participating securities according to dividends declared and participation rights in undistributed earnings. The Company’s convertible preferred stock was considered a participating security because holders were entitled to receive dividends on an if-converted basis. Diluted EPS assumes that participating securities are not executed or converted.
For all but the performance units, the potentially dilutive impact of the Company’s share-based compensation awards is determined using the treasury stock method. Under the treasury stock method, awards are treated as if they had been exercised with any proceeds used to repurchase common stock at the average market price during the period. Any incremental difference between the assumed number of shares issued and purchased is included in the diluted share computation. For the performance units, their contingent features result in an assessment for any potentially dilutive common stock by using the end of the reporting period as if it were the end of the contingency period for all units granted.
The computation of diluted EPS excluded aggregate share-based compensation awards of approximately 1.7 million and 0.6 million for the three and nine months ended September 30, 2019, respectively, and less than 0.1 million for both the three and nine months ended September 30, 2018, because to do so would have been anti-dilutive for those periods. Because the potential dilutive impact of such share-based compensation awards is calculated under the treasury stock method, anti-dilution generally occurs when the exercise prices or unrecognized compensation cost per share of such awards are higher than the Company’s average stock price during the applicable period.


31


PEABODY ENERGY CORPORATION
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

The following illustrates the earnings allocation method utilized in the calculation of basic and diluted EPS.
 
Three Months Ended September 30,
 
Nine Months Ended September 30,
 
2019
 
2018
 
2019
 
2018
 
(In millions, except per share data)
EPS numerator:
 
 
 
 
 
 
 
(Loss) income from continuing operations, net of income taxes
$
(74.3
)
 
$
83.9

 
$
101.9

 
$
412.2

Less: Series A Convertible Preferred Stock dividends

 

 

 
102.5

Less: Net income attributable to noncontrolling interests
4.7

 
8.3

 
12.8

 
8.9

(Loss) income from continuing operations attributable to common stockholders, before allocation of earnings to participating securities
(79.0
)
 
75.6

 
89.1

 
300.8

Less: Earnings allocated to participating securities

 

 

 
5.7

(Loss) income from continuing operations attributable to common stockholders, after allocation of earnings to participating securities (1)
(79.0
)
 
75.6

 
89.1

 
295.1

Loss from discontinued operations, net of income taxes
(3.8
)
 
(4.1
)
 
(10.6
)
 
(9.0
)
Less: Loss from discontinued operations allocated to participating securities

 

 

 
(0.2
)
Loss from discontinued operations attributable to common stockholders, after allocation of earnings to participating securities
(3.8
)
 
(4.1
)
 
(10.6
)
 
(8.8
)
Net (loss) income attributable to common stockholders, after allocation of earnings to participating securities (1)
$
(82.8
)
 
$
71.5

 
$
78.5

 
$
286.3

 
 
 
 
 
 
 
 
EPS denominator:
 
 
 
 
 
 
 
Weighted average shares outstanding — basic
102.2

 
118.6

 
105.9

 
121.3

Impact of dilutive securities

 
1.7

 
1.5

 
1.8

Weighted average shares outstanding — diluted (2)
102.2

 
120.3

 
107.4

 
123.1

 
 
 
 
 
 
 
 
Basic EPS attributable to common stockholders:
 
 
 
 
 
 
 
(Loss) income from continuing operations
$
(0.77
)
 
$
0.64

 
$
0.84

 
$
2.43

Loss from discontinued operations
(0.04
)
 
(0.04
)
 
(0.10
)
 
(0.07
)
Net (loss) income attributable to common stockholders
$
(0.81
)
 
$
0.60

 
$
0.74

 
$
2.36

 
 
 
 
 
 
 
 
Diluted EPS attributable to common stockholders:
 
 
 
 
 
 
 
(Loss) income from continuing operations
$
(0.77
)
 
$
0.63

 
$
0.83

 
$
2.40

Loss from discontinued operations
(0.04
)
 
(0.04
)
 
(0.10
)
 
(0.07
)
Net (loss) income attributable to common stockholders
$
(0.81
)
 
$
0.59

 
$
0.73

 
$
2.33


(1) 
The reallocation adjustment for participating securities to arrive at the numerator to calculate diluted EPS was $0.1 million for the nine months ended September 30, 2018.
(2) 
The two-class method assumes that participating securities are not exercised or converted. As such, weighted average diluted shares outstanding excluded 2.8 million shares related to the participating securities for the nine months ended September 30, 2018.
As of January 31, 2018, all 30.0 million shares of convertible preferred stock issued upon the Company’s emergence from the Chapter 11 reorganization had been converted into 59.3 million shares of common stock, which is inclusive of the shares that had been issued for the payable in-kind preferred stock dividends.


32


PEABODY ENERGY CORPORATION
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(18Financial Instruments and Other Guarantees
In the normal course of business, the Company is a party to various guarantees and financial instruments that carry off-balance-sheet risk and are not reflected in the accompanying condensed consolidated balance sheets. At September 30, 2019, such instruments included $1,599.3 million of surety bonds and $200.5 million of letters of credit. Such financial instruments provide support for the Company’s reclamation bonding requirements, lease obligations, insurance policies and various other performance guarantees. The Company periodically evaluates the instruments for on-balance-sheet treatment based on the amount of exposure under the instrument and the likelihood of required performance. The Company does not expect any material losses to result from these guarantees or off-balance-sheet instruments in excess of liabilities provided for in the accompanying condensed consolidated balance sheets.
The Company is required to provide various forms of financial assurance in support of its mining reclamation obligations in the jurisdictions in which it operates. Such requirements are typically established by statute or under mining permits. At September 30, 2019, the Company’s asset retirement obligations of $760.0 million were supported by surety bonds of $1,394.9 million, as well as letters of credit issued under the Company’s receivables securitization program and Revolver amounting to $106.1 million.
Accounts Receivable Securitization
The Company entered into the Sixth Amended and Restated Receivables Purchase Agreement, as amended, dated as of April 3, 2017 (the Receivables Purchase Agreement) to extend the Company’s receivables securitization facility previously in place and expand that facility to include certain receivables from the Company’s Australian operations. The receivables securitization program (Securitization Program) is subject to customary events of default set forth in the Receivables Purchase Agreement. The Securitization Program provides for up to $250.0 million in funding accounted for as a secured borrowing, limited to the availability of eligible receivables, and may be secured by a combination of collateral and the trade receivables underlying the program, from time to time. Funding capacity under the Securitization Program may also be utilized for letters of credit in support of other obligations. During 2019, the Company entered into an amendment to the Securitization Program to extend its term through April 1, 2022 and reduce program fees.
Under the terms of the Securitization Program, the Company contributes the trade receivables of its participating subsidiaries on a revolving basis to P&L Receivables, its wholly-owned, bankruptcy-remote subsidiary, which then sells the receivables to unaffiliated banks. P&L Receivables retains the ability to repurchase the receivables in certain circumstances. The assets and liabilities of P&L Receivables are consolidated with Peabody, and the Securitization Program is treated as a secured borrowing for accounting purposes, but the assets of P&L Receivables will be used first to satisfy the creditors of P&L Receivables, not Peabody’s creditors. The borrowings under the Securitization Program remain outstanding throughout the term of the agreement, subject to the Company maintaining sufficient eligible receivables, by continuing to contribute trade receivables to P&L Receivables, unless an event of default occurs.
At September 30, 2019, the Company had no outstanding borrowings and $132.7 million of letters of credit issued under the Securitization Program. The letters of credit were primarily in support of portions of the Company’s obligations for reclamation, workers’ compensation and postretirement benefits. The Company had no collateral requirement under the Securitization Program at September 30, 2019 or December 31, 2018. The Company incurred fees associated with the Securitization Program of $1.0 million and $1.7 million during the three months ended September 30, 2019 and 2018, respectively, and $3.6 million and $5.5 million during the nine months ended September 30, 2019 and 2018, respectively, which have been recorded as interest expense in the accompanying unaudited condensed consolidated statements of operations.
Collateral Arrangements and Restricted Cash
From time to time, the Company is required to remit cash to certain regulatory authorities and other third parties as collateral for financial assurances associated with a variety of long-term obligations and commitments surrounding the mining, reclamation and shipping of its production. During the nine months ended September 30, 2018, $363.2 million of such collateral and other restricted cash was returned to the Company, largely as the result of replacing collateral balances with third-party surety bonding in Australia.
Other
The Company has provided financial guarantees under certain long-term debt agreements entered into by its subsidiaries and substantially all of the Company’s U.S. subsidiaries provide financial guarantees under long-term debt agreements entered into by the Company. The maximum amounts payable under the Company’s debt agreements are equal to the respective principal and interest payments.


33


PEABODY ENERGY CORPORATION
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(19Commitments and Contingencies
Commitments
Unconditional Purchase Obligations
As of September 30, 2019, purchase commitments for capital expenditures were $87.7 million, all of which is obligated within the next three years, with $80.0 million obligated within the next 12 months.
There were no other material changes to the Company’s commitments from the information provided in Note 26. “Commitments and Contingencies” to the consolidated financial statements in the Company’s Annual Report on Form 10-K for the year ended December 31, 2018.
Contingencies
From time to time, the Company or its subsidiaries are involved in legal proceedings arising in the ordinary course of business or related to indemnities or historical operations. The Company believes it has recorded adequate reserves for these liabilities. The Company discusses its significant legal proceedings below, including ongoing proceedings and those that impacted the Company’s results of operations for the periods presented.
Litigation Relating to Bankruptcy
Ad Hoc Committee. A group of creditors (the Ad Hoc Committee) that held certain interests in the Company's prepetition indebtedness appealed the Bankruptcy Court’s order confirming the Company’s plan of reorganization (the Plan). On December 29, 2017, the United States District Court for the Eastern District of Missouri (the District Court) entered an order dismissing the Ad Hoc Committee's appeal, and, in the alternative, affirming the order confirming the Plan. On January 26, 2018, the Ad Hoc Committee appealed the District Court's order to the United States Court of Appeals for the Eighth Circuit (the Eighth Circuit). In its appeal, the Ad Hoc Committee asked the Eighth Circuit to award the Ad Hoc Committee members either unspecified damages or the right to buy an unspecified amount of Company stock at a discount. Oral argument on the appeal was held April 16, 2019, and the Eighth Circuit issued a unanimous opinion in Peabody’s favor on August 9, 2019. The Ad Hoc Committee has until November 2019 to seek rehearing or petition the Supreme Court for certiorari.
Litigation Relating to Continuing Operations
Peabody Monto Coal Pty Ltd, Monto Coal 2 Pty Ltd and Peabody Energy Australia PCI Pty Ltd (PEA-PCI). In October 2007, a claim was made against Peabody Monto Coal Pty Ltd, a wholly-owned subsidiary, and Monto Coal 2 Pty Ltd, an equity accounted investee of Macarthur Coal Limited (Macarthur), now known as PEA-PCI. The claim, made by the minority interest holders in the joint venture, alleged that the Macarthur companies breached certain agreements by failing to develop a mine project. The claim was amended to assert that Macarthur induced the alleged breach of the Monto Coal Joint Venture Agreement. The Company acquired Macarthur and its subsidiaries in 2011. These claims, which are pending before the Supreme Court of Queensland, Australia, seek damages of up to $1.1 billion Australian dollars, plus interest and costs.
The Company asserts that the Macarthur companies were never under an obligation to develop the mine project because the project was not economically viable.  The Company disputes all of the claims brought by the plaintiffs and is vigorously defending its position. The litigation itself will not end the joint venture with plaintiffs, and regardless of outcome at the trial court, the Company expects the decision will be appealed. The trial commenced on April 8, 2019 and is currently scheduled to finish by the end of the year. Since 2012, the Company has incurred costs of approximately $48 million Australian dollars defending its position, including approximately $29 million Australian dollars since the beginning of 2018.




34


PEABODY ENERGY CORPORATION
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

County of San Mateo, County of Marin, City of Imperial Beach. The Company was named as a defendant, along with numerous other companies, in three nearly identical lawsuits brought by municipalities in California. The lawsuits seek to hold a wide variety of companies that produce fossil fuels liable for the alleged impacts of the greenhouse gas emissions attributable to those fuels. The lawsuits primarily assert that the companies’ products have caused a sea level rise that is damaging the plaintiffs. The complaints specifically alleged that the defendants’ activities from 1965 to 2015 caused such damage. The Company filed a motion to enforce the Plan because it enjoins claims that arose before the effective date of the Plan. The motion to enforce was granted on October 24, 2017, and the Bankruptcy Court ordered the plaintiffs to dismiss their lawsuits against the Company. On November 26, 2017, the plaintiffs appealed the Bankruptcy Court’s October 24, 2017 order to the District Court. On November 28, 2017, the plaintiffs sought a stay pending appeal from the Bankruptcy Court, which was denied on December 8, 2017. On December 19, 2017, the plaintiffs moved the District Court for a stay pending appeal. The District Court denied the stay request on September 20, 2018, and the plaintiffs have appealed that decision to the Eighth Circuit. On March 29, 2019, the District Court affirmed the Bankruptcy Court ruling enjoining the plaintiffs from proceeding with their lawsuits against the Company. That ruling likewise is being appealed. In the underlying cases pending in California, the U.S. District Court for the Northern District of California granted plaintiffs’ motion for remand and decided the cases should be heard in state court. The defendants appealed the order granting remand to the Ninth Circuit and sought a stay of the U.S. District Court for the Northern District of California decision pending completion of the Ninth Circuit appeal. The U.S. District Court for the Northern District of California granted defendants’ request for a stay pending completion of the Ninth Circuit appeal. The plaintiffs filed a motion to dismiss part of the appeal. The parties are now litigating at the Ninth Circuit whether a state or federal court should hear these lawsuits. Regardless of whether state court or federal court is the venue, the Company believes the lawsuits against it should be dismissed under enforcement of the Plan. The Company does not believe the lawsuits are meritorious and, if the lawsuits are not dismissed, the Company intends to vigorously defend them.
10th Circuit U.S. Bureau of Land Management (BLM) Appeal. On September 15, 2017, the Tenth Circuit Court of Appeals reversed the District Court of Wyoming’s decision upholding BLM’s approval of four coal leases in the Powder River Basin. Two of the four leases relate to the Company’s North Antelope Rochelle Mine in Wyoming. There is no immediate impact on the Company’s leases as the Court of Appeals did not vacate the leases as part of its ruling. Rather, the Court of Appeals remanded the case back to the District Court of Wyoming with directions to order BLM to revise its environmental analysis. On November 27, 2017, the District Court of Wyoming ordered BLM to revise its environmental analysis. BLM published its draft environmental analysis on July 30, 2018. The Company, along with the National Mining Association, the Wyoming Mining Association and Arch, submitted comments on the draft environmental analysis by the comment deadline of October 4, 2018. BLM completed its final environmental analysis, prepared a finding of no significant impact and re-affirmed its decision to issue the leases. The original plaintiffs have indicated their intention to challenge the BLM’s revised environmental analysis, as well, but in October 2019, those plaintiffs asked the District Court of Wyoming to dismiss the current case. The Company’s operations will continue in the normal course during this period since the decision has no impact on mining at this time; which the plaintiffs may choose to challenge the new BLM environmental analysis through new litigation. The Company currently believes that its operations are unlikely to be materially impacted by this case, but the timing and magnitude of any impact on the Company’s future operations is not certain.
Other
At times the Company becomes a party to other disputes, including those related to contract miner performance, claims, lawsuits, arbitration proceedings, regulatory investigations and administrative procedures in the ordinary course of business in the U.S., Australia and other countries where the Company does business. Based on current information, the Company believes that such other pending or threatened proceedings are likely to be resolved without a material adverse effect on its financial condition, results of operations or cash flows.
(20Segment Information
The Company reports its results of operations through the following reportable segments: Seaborne Thermal Mining, Seaborne Metallurgical Mining, Powder River Basin Mining, Midwestern U.S. Mining, Western U.S. Mining and Corporate and Other. The Company’s chief operating decision maker uses Adjusted EBITDA as the primary metric to measure the segments’ operating performance.
Adjusted EBITDA is a non-GAAP financial measure defined as (loss) income from continuing operations before deducting net interest expense, income taxes, asset retirement obligation expenses, depreciation, depletion and amortization and reorganization items, net. Adjusted EBITDA is also adjusted for the discrete items that management excluded in analyzing the segments’ operating performance, as displayed in the reconciliation below. Management believes non-GAAP performance measures are used by investors to measure the Company’s operating performance and lenders to measure the Company’s ability to incur and service debt. Adjusted EBITDA is not intended to serve as an alternative to U.S. GAAP measures of performance and may not be comparable to similarly-titled measures presented by other companies.


35


PEABODY ENERGY CORPORATION
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Reportable segment results were as follows:
 
Three Months Ended September 30,
 
Nine Months Ended September 30,
 
2019
 
2018
 
2019
 
2018
 
(Dollars in millions)
Revenues:
 
 
 
 
 
 
 
Seaborne Thermal Mining
$
249.5

 
$
305.1

 
$
720.7

 
$
773.9

Seaborne Metallurgical Mining
216.3

 
370.3

 
831.7

 
1,254.0

Powder River Basin Mining
333.6

 
373.7

 
903.5

 
1,084.5

Midwestern U.S. Mining
176.0

 
208.5

 
522.6

 
607.7

Western U.S. Mining
150.4

 
156.1

 
448.2

 
439.4

Corporate and Other
(19.4
)
 
(1.1
)
 
79.3

 
25.2

Total
$
1,106.4

 
$
1,412.6

 
$
3,506.0

 
$
4,184.7

 
 
 
 
 
 
 
 
Adjusted EBITDA:
 
 
 
 
 
 
 
Seaborne Thermal Mining
$
76.8

 
$
145.3

 
$
245.9

 
$
314.5

Seaborne Metallurgical Mining
(16.2
)
 
90.7

 
127.0

 
415.6

Powder River Basin Mining
70.7

 
88.2

 
147.3

 
224.7

Midwestern U.S. Mining
36.0

 
38.7

 
100.0

 
111.9

Western U.S. Mining
46.3

 
28.5

 
141.3

 
94.4

Corporate and Other (1)
(63.3
)
 
(19.3
)
 
(129.3
)
 
(55.5
)
Total
$
150.3

 
$
372.1

 
$
632.2

 
$
1,105.6


(1)  
As described in Note 16. “Other Events,” included in the three and nine months ended September 30, 2018 is the gain of $20.5 million recognized on the sale of surplus coal resources associated with the Millennium Mine. Also included in the nine months ended September 30, 2018, is the gain of $20.6 million recognized on the sale of certain surplus land assets in Queensland and the gain of $7.1 million recognized on the sale of the Company’s interest in the RMJV.


36


PEABODY ENERGY CORPORATION
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

A reconciliation of consolidated (loss) income from continuing operations, net of income taxes to Adjusted EBITDA follows:
 
Three Months Ended September 30,
 
Nine Months Ended September 30,

2019
 
2018
 
2019
 
2018
 
(Dollars in millions)
(Loss) income from continuing operations, net of income taxes
$
(74.3
)
 
$
83.9

 
$
101.9

 
$
412.2

Depreciation, depletion and amortization
141.5

 
169.6

 
479.4

 
503.1

Asset retirement obligation expenses
15.5

 
12.4

 
44.6

 
37.9

Asset impairment
20.0

 

 
20.0

 

Provision for North Goonyella equipment loss

 
49.3

 
24.7

 
49.3

North Goonyella insurance recovery - equipment (1)

 

 
(91.1
)
 

Changes in deferred tax asset valuation allowance and reserves and amortization of basis difference related to equity affiliates

 
(6.1
)
 
0.3

 
(22.1
)
Interest expense
35.4

 
38.2

 
107.2

 
112.8

Loss on early debt extinguishment

 

 

 
2.0

Interest income
(7.0
)
 
(10.1
)
 
(22.5
)
 
(24.3
)
Reorganization items, net

 

 

 
(12.8
)
Unrealized losses (gains) on economic hedges
18.0

 
26.8

 
(44.2
)
 
36.3

Unrealized (gains) losses on non-coal trading derivative contracts
(0.3
)
 
(0.3
)
 
(0.2
)
 
1.4

Fresh start take-or-pay contract-based intangible recognition
(2.7
)
 
(5.4
)
 
(13.9
)
 
(21.5
)
Income tax provision
4.2

 
13.8

 
26.0

 
31.3

Total Adjusted EBITDA
$
150.3

 
$
372.1

 
$
632.2

 
$
1,105.6


(1)  
As described in Note 16. “Other Events,” the Company recorded a $125.0 million insurance recovery during the nine months ended September 30, 2019 related to losses incurred at its North Goonyella Mine. Of this amount, Adjusted EBITDA excludes an allocated amount applicable to total equipment losses recognized at the time of the insurance recovery settlement, which consisted of $24.7 million and $66.4 million recognized during the nine months ended September 30, 2019 and the year ended December 31, 2018, respectively. The remaining $33.9 million, applicable to incremental costs and business interruption losses, is included in Adjusted EBITDA for the nine months ended September 30, 2019.


37



Item 2.    Management’s Discussion and Analysis of Financial Condition and Results of Operations.
As used in this report, the terms “we,” “us,” “our,” and the “Company” refer to Peabody Energy Corporation and its consolidated subsidiaries and affiliates, collectively, unless the context indicates otherwise. The term “Peabody” refers to Peabody Energy Corporation and not its consolidated subsidiaries and affiliates. Unless otherwise noted herein, disclosures in this Quarterly Report on Form 10-Q relate only to our continuing operations.
When used in this filing, the term “ton” refers to short or net tons, equal to 2,000 pounds (907.18 kilograms), while “tonne” refers to metric tons, equal to 2,204.62 pounds (1,000 kilograms).
Cautionary Notice Regarding Forward-Looking Statements
This report includes statements of our expectations, intentions, plans and beliefs that constitute “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934, as amended, and are intended to come within the safe harbor protection provided by those sections. These statements relate to future events or our future financial performance, including, without limitation, the section captioned “Outlook” in this Item 2. We use words such as “anticipate,” “believe,” “expect,” “may,” “forecast,” “project,” “should,” “estimate,” “plan,” “outlook,” “target,” “likely,” “will,” “to be” or other similar words to identify forward-looking statements.
Without limiting the foregoing, all statements relating to our future operating results, anticipated capital expenditures, future cash flows and borrowings, and sources of funding are forward-looking statements and speak only as of the date of this report. These forward-looking statements are based on numerous assumptions that we believe are reasonable, but are subject to a wide range of uncertainties and business risks, and actual results may differ materially from those discussed in these statements. These factors are difficult to accurately predict and may be beyond our control. Factors that could affect our results or an investment in our securities include, but are not limited to:
our profitability depends upon the prices we receive for our coal;
if a substantial number of our long-term coal supply agreements terminate, our revenues and operating profits could suffer if we are unable to find alternate buyers willing to purchase our coal on comparable terms to those in our contracts;
the loss of, or significant reduction in, purchases by our largest customers could adversely affect our revenues;
our trading and hedging activities do not cover certain risks, and may expose us to earnings volatility and other risks;
our operating results could be adversely affected by unfavorable economic and financial market conditions;
our ability to collect payments from our customers could be impaired if their creditworthiness or contractual performance deteriorates;
risks inherent to mining could increase the cost of operating our business, and events and conditions that could occur during the course of our mining operations could have a material adverse impact on us;
if transportation for our coal becomes unavailable or uneconomic for our customers, our ability to sell coal may be diminished;
a decrease in the availability or increase in costs of key supplies, capital equipment or commodities such as diesel fuel, steel, explosives and tires could decrease our anticipated profitability;
take-or-pay arrangements within the coal industry could unfavorably affect our profitability;
an inability of trading, brokerage, mining or freight counterparties to fulfill the terms of their contracts with us could reduce our profitability;
we may not recover our investments in our mining, exploration and other assets, which may require us to recognize impairment charges related to those assets;
our ability to operate our company effectively could be impaired if we lose key personnel or fail to attract qualified personnel;
we could be negatively affected if we fail to maintain satisfactory labor relations;
we could be adversely affected if we fail to appropriately provide financial assurances for our obligations;
our mining operations are extensively regulated, which imposes significant costs on us, and future regulations and developments could increase those costs or limit our ability to produce coal;
our operations may impact the environment or cause exposure to hazardous substances, and our properties may have environmental contamination, which could result in material liabilities to us;
we may be unable to obtain, renew or maintain permits necessary for our operations, which would reduce our production, cash flows and profitability;


38



our mining operations are subject to extensive forms of taxation, which imposes significant costs on us, and future regulations and developments could increase those costs or limit our ability to produce coal competitively;
if the assumptions underlying our asset retirement obligations for reclamation and mine closures are materially inaccurate, our costs could be significantly greater than anticipated;
our future success depends upon our ability to continue acquiring and developing coal reserves that are economically recoverable;
we face numerous uncertainties in estimating our economically recoverable coal reserves and inaccuracies in our estimates could result in lower than expected revenues, higher than expected costs and decreased profitability;
our global operations increase our exposure to risks unique to international mining and trading operations;
our proposed joint ventures with Arch Coal, Inc. (Arch) and Glencore plc (Glencore) may not be completed;
joint ventures, partnerships or non-managed operations may not be successful and may not comply with our operating standards;
we may undertake further repositioning plans that would require additional charges;
we could be exposed to significant liability, reputational harm, loss of revenue, increased costs or other risks if we sustain cyber attacks or other security breaches that disrupt our operations or result in the dissemination of proprietary or confidential information about us, our customers or other third-parties;
our expenditures for postretirement benefit and pension obligations could be materially higher than we have predicted if our underlying assumptions prove to be incorrect;
concerns about the impacts of coal combustion on global climate are increasingly leading to consequences that have and could continue to affect demand for our products or our securities, including the following: increased regulation of coal combustion in many jurisdictions; investment decisions by electricity generators that are unfavorable to coal-fueled generation units; unfavorable lending policies by lending institutions and development banks toward the financing of new overseas coal-fueled power plants; and divestment efforts affecting the institutional investment community;
numerous activist groups are devoting substantial resources to anti-coal activities to minimize or eliminate the use of coal as a source of electricity generation, domestically and internationally, thereby further reducing the demand and pricing for coal, and potentially materially and adversely impacting our future financial results, liquidity and growth prospects;
we may not be able to successfully integrate the recently acquired Shoal Creek Mine or other companies, assets or properties that we may acquire in the future;
if we fail to establish and maintain proper internal controls for the Shoal Creek Mine, our ability to produce accurate financial statements or comply with applicable regulations could be impaired;
our financial performance could be adversely affected by our indebtedness;
despite our indebtedness, we may still be able to incur substantially more debt, including secured debt, which could further increase the risks associated with our indebtedness;
we may not be able to generate sufficient cash to service all of our indebtedness or other obligations;
the terms of our indenture governing our senior secured notes and the agreements and instruments governing our other indebtedness impose restrictions that may limit our operating and financial flexibility;
the number and quantity of viable financing alternatives available to us may be significantly impacted by unfavorable lending and investment policies by financial institutions and insurance companies associated with concerns about environmental impacts of coal combustion;
the price of our securities may be volatile;
our Common Stock is subject to dilution and may be subject to further dilution in the future;
there may be circumstances in which the interests of a significant stockholder could be in conflict with other stakeholders’ interests;
the payment of dividends on our stock or repurchases of our stock is dependent on a number of factors, and future payments and repurchases cannot be assured;
we may not be able to fully utilize our deferred tax assets;
acquisitions and divestitures are a potentially important part of our long-term strategy, subject to our investment criteria, and involve a number of risks, any of which could cause us not to realize the anticipated benefits;
our certificate of incorporation and by-laws include provisions that may discourage a takeover attempt;


39



diversity in interpretation and application of accounting literature in the mining industry may impact our reported financial results; and
other risks and factors detailed in this report, including, but not limited to, those discussed in “Legal Proceedings,” set forth in Part II, Item 1 and in “Risk Factors,” set forth in Part II, Item 1A of this Quarterly Report on Form 10-Q.
When considering these forward-looking statements, you should keep in mind the cautionary statements in this document and in our other Securities and Exchange Commission (SEC) filings, including, but not limited to, the more detailed discussion of these factors and other factors that could affect our results contained in Item 1A. “Risk Factors” and Item 3. “Legal Proceedings” of our Annual Report on Form 10-K for the year ended December 31, 2018 and in Item 1A. “Risk Factors” of our Quarterly Report on Form 10-Q for the period ended June 30, 2019 filed with the SEC on August 8, 2019. These forward-looking statements speak only as of the date on which such statements were made, and we undertake no obligation to update these statements except as required by federal securities laws.
Overview
We are the world’s largest private-sector coal company by volume. In 2018, we produced and sold 182.1 million and 186.7 million tons of coal, respectively, from continuing operations. As of September 30, 2019, we owned interests in 21 coal mining operations located in the United States (U.S.) and Australia. We had previously reported owning interests in 23 coal mining operations, but during the three months ended September 30, 2019, the Cottage Grove Mine in the Midwestern U.S. Mining segment and the Kayenta Mine in the Western U.S. Mining segment shipped their final tons. In the Midwestern U.S. Mining segment, we are continuing to transition toward operating complexes as we shift contracts to more productive mines. The Kayenta Mine contributed approximately $95 million of Adjusted EBITDA and recorded depreciation, depletion and amortization and asset retirement obligation expense of approximately $110 million during the nine months ended September 30, 2019 and may provide incremental contributions in the near term upon determination of the amount of certain post-mining costs the customer is obligated to fund. We are currently negotiating with the United Mine Workers of America to supply labor for the remaining reclamation. As a result of those two mines making their final shipments, we now have a majority interest in 20 mining operations and a 50% equity interest in Middlemount Coal Pty Ltd. (Middlemount), which owns the Middlemount Mine in Queensland, Australia. In addition to our mining operations, we market and broker coal from other coal producers, both as principal and agent, and trade coal and freight-related contracts.
We conduct business through five operating segments: Seaborne Thermal Mining, Seaborne Metallurgical Mining, Powder River Basin Mining, Midwestern U.S. Mining and Western U.S. Mining. Refer to Note 20. “Segment Information” in the accompanying unaudited condensed consolidated financial statements for further information regarding those segments and the components of our Corporate and Other segment.
On June 18, 2019, we entered into a definitive implementation agreement (the Implementation Agreement) with Arch, to establish a joint venture that will combine the respective Powder River Basin and Colorado mining operations of Peabody and Arch. We expect the joint venture to result in several operational synergies, including improved mining productivity and lower per-unit operating costs. Pursuant to the terms of the Implementation Agreement, we will hold a 66.5% economic interest in the joint venture and Arch will hold a 33.5% economic interest. We expect to proportionally consolidate the entity based upon our economic interest. Governance of the joint venture will be overseen by the joint venture’s board of managers, which will be comprised of Peabody and Arch representatives with voting powers proportionate with the companies’ economic interests. We will manage the operations of the joint venture, subject to the supervision of the joint venture’s board of managers.
Formation of the joint venture is subject to customary closing conditions, including the termination or expiration of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, the receipt of certain other required regulatory approvals and the absence of injunctions or other legal restraints preventing the formation of the joint venture. The proposed joint venture is progressing through the U.S. Federal Trade Commission regulatory review process which is anticipated to conclude during the first half of 2020, and which would result in clearance to form the joint venture or litigation to block its execution. The existing outstanding indebtedness of both Peabody and Arch limits significant transactions such as the joint venture, and accordingly, formation is subject to Peabody and Arch amending such outstanding indebtedness under agreeable terms. In September 2019, we amended our credit agreement to expressly permit formation of the joint venture and we are exploring various alternatives under the indenture governing our senior secured notes. At such time as control over the existing operations is exchanged, we will account for our interest in the combined operations at fair value.
On December 3, 2018, we acquired the Shoal Creek metallurgical coal mine, preparation plant and supporting assets located in Alabama (Shoal Creek Mine) as further discussed in Note 3. “Acquisition of Shoal Creek Mine” to the accompanying unaudited condensed consolidated financial statements. Our results of operations include the Shoal Creek Mine’s results of operations for the three and nine months ended September 30, 2019. The Shoal Creek Mine’s results are reflected in our Seaborne Metallurgical Mining segment.


40


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Our North Goonyella Mine in Queensland, Australia experienced a fire in a portion of the mine during September 2018. Mining operations have been suspended since September 2018. No mine personnel were physically harmed by the September 2018 events. On November 13, 2018, the Queensland Mine Inspectorate (QMI) initiated an investigation into the events that occurred at the mine to determine the cause of the event, assess the response to it and make recommendations to reduce the possibility of future incidents and improve response.
During the first quarter of 2019, we completed segmenting of the mine into multiple zones to facilitate a phased re-ventilation and re-entry of the mine. We commenced re-ventilation of the first zone of the mine during the second quarter of 2019 and subsequently re-entered the area in July 2019. Following these activities and a subsequent detailed assessment, we concluded during the fourth quarter of 2019 that due to the time, cost and required regulatory approach to ventilate and re-enter the entire mine, we will not pursue attempts to access certain portions of the mine through existing mine workings, but will instead move to the southern panels.
We now plan to proceed to re-ventilate the second zone in the current mine configuration at an estimated cost of $12 million to $15 million, with an approach of utilizing bore holes from the surface. The approach is contingent on obtaining pre-approval for the re-ventilation plan from the QMI, and that process is currently underway. Following planned re-ventilation, we intend to re-enter and assess the mine conditions, with targeted development of the southern panels that contain approximately 20 million tons of high-quality hard coking coal.
The expected length of time to re-ventilate the mine would deploy a different approach that significantly reduces the labor required and lowers planned holding costs. We are taking steps to reduce most of the salaried and hourly workforce due to the lack of beneficial work and intend to offer alternative employment to workers where practical to mitigate the impacts of the reductions. Based on the planned approach, we expect no meaningful North Goonyella volumes for three or more years, with development coal to be produced in the second half of 2020.
No incremental capital will be committed until the second zone of the mine has been fully explored, full mine economics are evaluated and both our management and Board of Directors authorize the project. Assuming successful ventilation and targeted re-entry of the second zone of the mine, we estimate 2020 project capital costs of approximately $50 million to $75 million, which primarily consists of costs to develop the southern panels. We will continue to refine capital estimates as work progresses.
During the year ended December 31, 2018, we recorded $58.0 million in containment and idling costs related to the events at North Goonyella Mine and a provision of $66.4 million for expected equipment losses. The portion recorded during the three and nine months ended September 30, 2018 amounted to $9.0 million in containment and idling costs and a provision of $49.3 million for expected equipment losses. During the three and nine months ended September 30, 2019, we recorded an additional $29.3 million and $94.6 million, respectively, in containment and idling costs, and an additional provision of $24.7 million related to equipment losses was recorded during the nine months ended September 30, 2019 as more information became available. The combined provision includes $50.7 million for the estimated cost to replace leased equipment, $23.2 million related to the cost of Company-owned equipment and $17.2 million of other charges, which represents the best estimate of loss based on the assessments made at September 30, 2019. Given the revision in our approach to accessing the remaining reserves made during the fourth quarter of 2019, we recorded an additional provision for equipment losses of approximately $60 million, primarily related to unrecoverable longwall panel development, subsequent to September 30, 2019.
In March 2019, we entered into an insurance claim settlement agreement with our insurers and various re-insurers under a combined property damage and business interruption policy and recorded a $125 million insurance recovery, the maximum amount available under the policy above a $50 million deductible. We have collected the full amount of the recovery.
On April 30, 2019, Peabody (Bowen) Pty Ltd entered into an option exercise and release agreement with Yancoal Technology Development Pty Ltd pursuant to which Peabody (Bowen) Pty Ltd exercised an option to acquire from Yancoal Technology Development Pty Ltd the longwall mining equipment used under license at the North Goonyella Mine for $54.2 million, which was consistent with our provision for equipment losses for the related impaired assets.
In 2014, we agreed to establish an unincorporated joint venture project with Glencore, in which we hold a 50% interest, to combine the existing operations of our Wambo Open-Cut Mine in Australia with the adjacent coal reserves of Glencore’s United Mine. Glencore will manage the operations of the joint venture. We expect the project to result in several operational synergies, including improved mining productivity, lower per-unit operating costs and an extended mine life beyond what could be potentially achieved as a standalone operation. The joint venture is expected to be formed during 2019, subject to substantive contingencies for the requisite regulatory and permitting approvals. Mining tenements will be contributed at formation and open-cut operations will be transitioned at first scheduled coal delivery date of joint venture operations. We will account for the components of the transaction at fair value, which could result in a gain or loss.


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Results of Operations
Non-GAAP Financial Measures
The following discussion of our results of operations includes references to and analysis of Adjusted EBITDA, which is a financial measure not recognized in accordance with U.S. generally accepted accounting principles (U.S. GAAP). Adjusted EBITDA is used by management as the primary metric to measure each of our segments’ operating performance.
Also included in the following discussion of our results of operations are references to Revenues per Ton, Costs per Ton and Adjusted EBITDA Margin per Ton for each mining segment. These metrics are used by management to measure each of our mining segments’ operating performance. Management believes Costs per Ton and Adjusted EBITDA Margin per Ton best reflect controllable costs and operating results at the mining segment level. We consider all measures reported on a per ton basis to be operating/statistical measures; however, we include reconciliations of the related non-GAAP financial measures (Adjusted EBITDA and Total Reporting Segment Costs) in the “Reconciliation of Non-GAAP Financial Measures” section contained within this Item 2.
In our discussion of liquidity and capital resources, we include references to Free Cash Flow which is also a non-GAAP measure. Free Cash Flow is used by management as a measure of our financial performance and our ability to generate excess cash flow from our business operations.
We believe non-GAAP performance measures are used by investors to measure our operating performance and lenders to measure our ability to incur and service debt. These measures are not intended to serve as alternatives to U.S. GAAP measures of performance and may not be comparable to similarly-titled measures presented by other companies. Refer to the “Reconciliation of Non-GAAP Financial Measures” section contained within this Item 2 for definitions and reconciliations to the most comparable measures under U.S. GAAP.
Three and Nine Months Ended September 30, 2019 Compared to the Three and Nine Months Ended September 30, 2018
Summary
Spot pricing for premium low-vol hard coking coal (Premium HCC), premium low-vol pulverized coal injection (Premium PCI) coal, Newcastle index thermal coal and API 5 thermal coal, and prompt month pricing for Powder River Basin (PRB) 8,880 Btu/Lb coal and Illinois Basin 11,500 Btu/Lb coal during the three months ended September 30, 2019 is set forth in the table below. Pricing for our Western U.S. Mining segment is not included as there is no similar spot or prompt pricing data available.
The seaborne pricing included in the table below is not necessarily indicative of the pricing we realized during the three months ended September 30, 2019 due to quality differentials and the majority of our seaborne sales being executed through annual and multi-year international coal supply agreements that contain provisions requiring both parties to renegotiate pricing periodically. Our typical practice is to negotiate pricing for seaborne metallurgical coal contracts on a quarterly, spot or index basis and seaborne thermal coal contracts on an annual, spot or index basis.
In the U.S., the pricing included in the table below is also not necessarily indicative of the pricing we realized during the three months ended September 30, 2019 since we generally sell coal under long-term contracts where pricing is determined based on various factors. Such long-term contracts in the U.S. may vary significantly in many respects, including price adjustment features, price reopener terms, coal quality requirements, quantity parameters, permitted sources of supply, treatment of environmental constraints, extension options, force majeure and termination and assignment provisions. Competition from alternative fuels such as natural gas and other coal producers may also impact our realized pricing.
 
 
High
 
Low
 
Average
 
September 30, 2019
Premium HCC (1)
 
$
193.50

 
$
127.30

 
$
160.08

 
$
133.00

Premium PCI coal (1)
 
$
121.75

 
$
90.40

 
$
103.97

 
$
91.25

Newcastle index thermal coal (1)
 
$
76.51

 
$
62.32

 
$
67.96

 
$
64.99

API 5 thermal coal (1)
 
$
52.54

 
$
48.00

 
$
49.75

 
$
48.49

PRB 8,800 Btu/Lb coal (2)
 
$
12.25

 
$
12.05

 
$
12.13

 
$
12.10

Illinois Basin 11,500 Btu/Lb coal (2)
 
$
38.25

 
$
34.25

 
$
35.82

 
$
34.25

(1) 
Prices expressed per tonne.
(2) 
Prices expressed per ton.


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With respect to seaborne metallurgical coal, global steel production increased approximately 4% through the nine months ended September 30, 2019 as compared to the prior year period. India imports increased approximately 7% through the nine months ended September 30, 2019 as compared to the prior year, amid steel production growth of approximately 4% year-over-year. Steel production in China increased approximately 8% through the nine months ended September 30, 2019 as compared to the prior year, resulting in an approximate 20% increase in coking coal imports during the same period. China’s steel production continues to be fueled by infrastructure spending. China’s seaborne demand will remain dependent on the country’s import policies.
Seaborne thermal coal demand and pricing was subdued due to restrictions in China and low gas prices coupled with elevated stockpiles in Europe, despite robust demand from India and other Asian regions. Chinese thermal coal imports increased by approximately 11 million tonnes through the nine months ended September 30, 2019 as compared to the prior year. China’s domestic production has been constrained by heightened mine safety inspections leading to a modest 4.5% increase in production through the nine months ended September 30, 2019 as compared to the prior year period. India’s domestic production increased approximately 1% through the nine months ended September 30, 2019, but was not sufficient to meet growing demand from the industrial and power sector. As a result, India’s thermal coal imports have increased by approximately 8% or 9 million tonnes year-over-year through September 30, 2019. Demand from countries comprising the Association of Southeast Asian Nations (ASEAN) increased 16 million tonnes through the nine months ended September 30, 2019 as compared to the prior year, primarily led by Vietnam.
In the United States, overall electricity demand was down year-over-year through the nine months ended September 30, 2019. This combination of lower demand, continued coal plant retirements, growth in renewable generation and weak natural gas prices has negatively impacted coal generation. Through the nine months ended September 30, 2019, utility consumption of PRB coal fell approximately 15% as compared to the prior year due to ongoing pressure from retirements and regional natural gas prices that continue to trade at a discount to quoted Henry Hub natural gas spot prices. In addition, transportation disruptions in the upper Great Plains due to heavy flooding have led to reduced rail shipments and production of PRB coal, down approximately 8% year-over-year through the nine months ended September 30, 2019.
Our revenues for the three and nine months ended September 30, 2019 decreased as compared to the same periods in 2018 ($306.2 million and $678.7 million, respectively) primarily due to lower sales volumes and realized prices. Our Seaborne Metallurgical Mining segment was adversely impacted by the events at our North Goonyella Mine described above, as well as other production factors, partially offset by volume from our Shoal Creek Mine. Our Powder River Basin Mining segment was adversely impacted by delays in rail shipments caused by severe flooding during the first half of 2019.
Results from continuing operations, net of income taxes for the three and nine months ended September 30, 2019 decreased as compared to the same periods in the prior year ($158.2 million and $310.3 million, respectively). The decrease was driven by the unfavorable revenue variances described above, as well as lower results from equity affiliates due to production issues at the Middlemount Mine (three months, $37.9 million; nine months, $71.9 million), asset impairment charges recorded in the current period (three and nine months, $20.0 million), lower gains on disposals in the current year (three months, $19.7 million; nine months, $47.0 million) and bankruptcy-related claims settlement gains recorded in the prior year (nine months, $12.8 million). These unfavorable variances were partially offset by reduced operating costs and expenses owing largely to the sales volume decline as well as production efficiencies and other cost improvements (three months, $141.7 million; nine months, $338.8 million), lower provisions in the current year for equipment losses at our North Goonyella Mine (three months, $49.3 million; nine months, $24.6 million), lower depreciation, depletion and amortization (three months, $28.1 million; nine months, $23.7 million) and an insurance recovery related to the events at our North Goonyella Mine (nine months, $125.0 million)
The decrease in net results attributable to common stockholders during the nine months ended September 30, 2019 as compared to the same period in 2018 was partially offset by dividends ($102.5 million) recorded in the prior year period related to the convertible preferred stock issued in connection with our bankruptcy exit. Adjusted EBITDA for the three and nine months ended September 30, 2019 reflected a year-over-year decrease of $221.8 million and $473.4 million, respectively.
As of September 30, 2019, our available liquidity was approximately $1.35 billion. Refer to the “Liquidity and Capital Resources” section contained within this Item 2 for a further discussion of factors affecting our available liquidity.


43


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Tons Sold
The following table presents tons sold by operating segment:
 
Three Months Ended
 
Increase (Decrease)
 
Nine Months Ended
 
Increase (Decrease)
 
September 30,
 
to Volumes
 
September 30,
 
to Volumes
 
2019
 
2018
 
Tons
 
%
 
2019
 
2018
 
Tons
 
%
 
(Tons in millions)
 
 
 
(Tons in millions)
 
 
Seaborne Thermal Mining
4.9

 
4.8

 
0.1

 
2
 %
 
14.1

 
13.6

 
0.5

 
4
 %
Seaborne Metallurgical Mining
1.8

 
2.8

 
(1.0
)
 
(36
)%
 
6.2

 
8.7

 
(2.5
)
 
(29
)%
Powder River Basin Mining
30.2

 
31.7

 
(1.5
)
 
(5
)%
 
80.5

 
90.3

 
(9.8
)
 
(11
)%
Midwestern U.S. Mining
4.2

 
4.9

 
(0.7
)
 
(14
)%
 
12.3

 
14.3

 
(2.0
)
 
(14
)%
Western U.S. Mining
3.0

 
4.0

 
(1.0
)
 
(25
)%
 
10.0

 
11.2

 
(1.2
)
 
(11
)%
Total tons sold from mining segments
44.1

 
48.2

 
(4.1
)
 
(9
)%
 
123.1

 
138.1

 
(15.0
)
 
(11
)%
Corporate and Other
0.7

 
0.9

 
(0.2
)
 
(22
)%
 
1.6

 
2.4

 
(0.8
)
 
(33
)%
Total tons sold
44.8

 
49.1

 
(4.3
)
 
(9
)%
 
124.7

 
140.5

 
(15.8
)
 
(11
)%


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Supplemental Financial Data
The following table presents supplemental financial data by operating segment:
 
Three Months Ended
 
(Decrease)
 
Nine Months Ended
 
(Decrease)
 
September 30,
 
Increase
 
September 30,
 
Increase
 
2019
 
2018
 
$
 
%
 
2019
 
2018
 
$
 
%
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Revenues per Ton - Mining Operations (1)
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Seaborne Thermal
$
51.06

 
$
63.50

 
$
(12.44
)
 
(20
)%
 
$
51.14

 
$
57.09

 
$
(5.95
)
 
(10
)%
Seaborne Metallurgical
120.94

 
132.50

 
(11.56
)
 
(9
)%
 
134.80

 
143.44

 
(8.64
)
 
(6
)%
Powder River Basin
11.02

 
11.80

 
(0.78
)
 
(7
)%
 
11.22

 
12.01

 
(0.79
)
 
(7
)%
Midwestern U.S.
42.33

 
42.45

 
(0.12
)
 
 %
 
42.48

 
42.41

 
0.07

 
 %
Western U.S.
49.73

 
38.91

 
10.82

 
28
 %
 
44.80

 
39.23

 
5.57

 
14
 %
Costs per Ton - Mining Operations (1)(2)
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Seaborne Thermal
$
35.33

 
$
33.20

 
$
2.13

 
6
 %
 
$
33.69

 
$
33.89

 
$
(0.20
)
 
(1
)%
Seaborne Metallurgical (3)
130.01

 
100.14

 
29.87

 
30
 %
 
114.22

 
95.90

 
18.32

 
19
 %
Powder River Basin
8.69

 
9.01

 
(0.32
)
 
(4
)%
 
9.39

 
9.52

 
(0.13
)
 
(1
)%
Midwestern U.S.
33.66

 
34.57

 
(0.91
)
 
(3
)%
 
34.35

 
34.60

 
(0.25
)
 
(1
)%
Western U.S.
34.45

 
31.80

 
2.65

 
8
 %
 
30.68

 
30.80

 
(0.12
)
 
 %
Adjusted EBITDA Margin per Ton - Mining Operations (1)(2)
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Seaborne Thermal
$
15.73

 
$
30.30

 
$
(14.57
)
 
(48
)%
 
$
17.45

 
$
23.20

 
$
(5.75
)
 
(25
)%
Seaborne Metallurgical (3)
(9.07
)
 
32.36

 
(41.43
)
 
(128
)%
 
20.58

 
47.54

 
(26.96
)
 
(57
)%
Powder River Basin
2.33

 
2.79

 
(0.46
)
 
(16
)%
 
1.83

 
2.49

 
(0.66
)
 
(27
)%
Midwestern U.S.
8.67

 
7.88

 
0.79

 
10
 %
 
8.13

 
7.81

 
0.32

 
4
 %
Western U.S.
15.28

 
7.11

 
8.17

 
115
 %
 
14.12

 
8.43

 
5.69

 
67
 %
(1) 
This is an operating/statistical measure not recognized in accordance with U.S. GAAP. Refer to the “Reconciliation of Non-GAAP Financial Measures” section below for definitions and reconciliations to the most comparable measures under U.S. GAAP.
(2) 
Includes revenue-based production taxes and royalties; excludes depreciation, depletion and amortization; asset retirement obligation expenses; selling and administrative expenses; restructuring charges; asset impairment; provision for North Goonyella equipment loss and related insurance recovery; amortization of fresh start reporting adjustments related to take-or-pay contract-based intangibles; and certain other costs related to post-mining activities.
(3) 
Includes the events at the North Goonyella Mine resulting in additional Costs per Ton and lower Adjusted EBITDA Margin per Ton for Seaborne Metallurgical of $16.38 and $3.22 for the three months ended September 30, 2019 and 2018, respectively and $9.84 and $1.03 for the nine months ended September 30, 2019 and 2018, respectively.


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Revenues
The following table presents revenues by reporting segment:
 
Three Months Ended
 
Decrease
 
Nine Months Ended
 
(Decrease) Increase
 
September 30,
 
to Revenues
 
September 30,
 
to Revenues
 
2019
 
2018
 
$
 
%
 
2019
 
2018
 
$
 
%
 
(Dollars in millions)
 
 
 
(Dollars in millions)
 
 
Seaborne Thermal Mining
$
249.5

 
$
305.1

 
$
(55.6
)
 
(18
)%
 
$
720.7

 
$
773.9

 
$
(53.2
)
 
(7
)%
Seaborne Metallurgical Mining
216.3

 
370.3

 
(154.0
)
 
(42
)%
 
831.7

 
1,254.0

 
(422.3
)
 
(34
)%
Powder River Basin Mining
333.6

 
373.7

 
(40.1
)
 
(11
)%
 
903.5

 
1,084.5

 
(181.0
)
 
(17
)%
Midwestern U.S. Mining
176.0

 
208.5

 
(32.5
)
 
(16
)%
 
522.6

 
607.7

 
(85.1
)
 
(14
)%
Western U.S. Mining
150.4

 
156.1

 
(5.7
)
 
(4
)%
 
448.2

 
439.4

 
8.8

 
2
 %
Corporate and Other
(19.4
)
 
(1.1
)
 
(18.3
)
 
(1,664
)%
 
79.3

 
25.2

 
54.1

 
215
 %
Revenues
$
1,106.4

 
$
1,412.6

 
$
(306.2
)
 
(22
)%
 
$
3,506.0

 
$
4,184.7

 
$
(678.7
)
 
(16
)%
Seaborne Thermal Mining. Segment revenues decreased during the three and nine months ended September 30, 2019 compared to the same periods in the prior year due to unfavorable realized coal pricing (three months, $60.8 million; nine months, $87.4 million), partially offset by favorable volume and mix variances (three months, $5.2 million; nine months, $34.2 million).
Seaborne Metallurgical Mining. Segment revenues decreased during the three and nine months ended September 30, 2019 compared to the same periods in the prior year primarily due to unfavorable volumes (three months, 1.0 million tons, $139.6 million; nine months, 2.5 million tons, $385.8 million). The unfavorable volume variance resulting from the transition to highwall mining at our Millennium Mine in September 2018, a longwall move at our Metropolitan Mine and various mine sequencing impacts (three months, 1.1 million tons, $140.1 million; nine months, 2.6 million tons, $339.7 million) and no current year volume from our North Goonyella Mine (three months, 0.3 million tons, $55.7 million; nine months, 1.7 million tons, $333.0 million) was partially offset by volume provided by our Shoal Creek Mine, acquired in December 2018 (three months, 0.4 million tons, $56.2 million; nine months, 1.8 million tons, $286.9 million). Segment revenues were further impacted by lower realized pricing (three months, $14.4 million; nine months, $36.5 million).
Powder River Basin Mining. Segment revenues decreased during the three months ended September 30, 2019 compared to the same period in the prior year due unfavorable realized pricing ($20.2 million) and demand-based volume decreases ($19.9 million). Segment revenues decreased during the nine months ended September 30, 2019 compared to the same period in the prior year due to lower volume primarily attributable to railroad closures and delays that resulted from severe flooding across the upper Great Plains during the first half of 2019 and lower demand ($128.9 million) and unfavorable realized pricing ($52.1 million).
Midwestern U.S. Mining. Segment revenues decreased during the three and nine months ended September 30, 2019 compared to the same periods in the prior year primarily due to lower demand-based volume (three months, $32.9 million; nine months, $85.4 million).
Western U.S. Mining. Segment revenues decreased during the three months ended September 30, 2019 compared to the same period in the prior year due to lower volume ($42.7 million) driven by the closure of our Kayenta Mine during the third quarter of 2019, offset by favorable realized pricing ($37.0 million). Segment revenues increased during the nine months ended September 30, 2019 compared to the same period in the prior year as favorable realized pricing, primarily from our Kayenta Mine ($55.8 million) offset an unfavorable volume and mix variance ($47.0 million). Included in the realized pricing for the three and nine months ended September 30, 2019 was revenue associated with the customer’s obligation to fund various post-mining costs at the Kayenta Mine ($15.9 million).
Corporate and Other. Segment revenues decreased during the three months ended September 30, 2019 compared to the same period in the prior year primarily due to lower results on economic hedges. Segment revenues increased during the nine months ended September 30, 2019 compared to the same period in the prior year primarily due to improved results on economic hedges.


46


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Adjusted EBITDA
The following table presents Adjusted EBITDA for each of our reporting segments:
 
Three Months Ended
 
(Decrease) Increase
 
Nine Months Ended
 
(Decrease) Increase
 
September 30,
 
to Segment Adjusted EBITDA
 
September 30,
 
to Segment Adjusted EBITDA
 
2019
 
2018
 
$
 
%
 
2019
 
2018
 
$
 
%
 
(Dollars in millions)
 
 
 
(Dollars in millions)
 
 
Seaborne Thermal Mining
$
76.8

 
$
145.3

 
$
(68.5
)
 
(47
)%
 
$
245.9

 
$
314.5

 
$
(68.6
)
 
(22
)%
Seaborne Metallurgical Mining
(16.2
)
 
90.7

 
(106.9
)
 
(118
)%
 
127.0

 
415.6

 
(288.6
)
 
(69
)%
Powder River Basin Mining
70.7

 
88.2

 
(17.5
)
 
(20
)%
 
147.3

 
224.7

 
(77.4
)
 
(34
)%
Midwestern U.S. Mining
36.0

 
38.7

 
(2.7
)
 
(7
)%
 
100.0

 
111.9

 
(11.9
)
 
(11
)%
Western U.S. Mining
46.3

 
28.5

 
17.8

 
62
 %
 
141.3

 
94.4

 
46.9

 
50
 %
Corporate and Other
(63.3
)
 
(19.3
)
 
(44.0
)
 
(228
)%
 
(129.3
)
 
(55.5
)
 
(73.8
)
 
(133
)%
Adjusted EBITDA (1)
$
150.3

 
$
372.1

 
$
(221.8
)
 
(60
)%
 
$
632.2

 
$
1,105.6

 
$
(473.4
)
 
(43
)%
(1) 
This is a financial measure not recognized in accordance with U.S. GAAP. Refer to the “Reconciliation of Non-GAAP Financial Measures” section below for definitions and reconciliations to the most comparable measures under U.S. GAAP.
Seaborne Thermal Mining. Segment Adjusted EBITDA decreased during the three and nine months ended September 30, 2019 compared to the same periods in the prior year as a result of lower realized net coal pricing (three months, $56.1 million; nine months, $80.7 million) and unfavorable mine sequencing impacts among our thermal surface mines (three months, $25.5 million; nine months, $35.9 million), offset by improved longwall performance at our Wambo Underground Mine (three months, $5.7 million; nine months, $20.7 million) and favorable foreign currency impacts (three months, $5.8 million; nine months, $20.4 million).
Seaborne Metallurgical Mining. Segment Adjusted EBITDA decreased during the three and nine months ended September 30, 2019 as compared to the same periods in the prior year due to unfavorable volume variances as described above (three months, $74.8 million; nine months, $186.8 million). The impact of no current year volume from our North Goonyella Mine (nine months, $111.7 million) was offset by the volume provided by our Shoal Creek Mine (nine months, $121.0 million). The decrease in Segment Adjusted EBITDA was further impacted by mine sequencing impacts among our metallurgical surface operations (three months, $29.2 million; nine months, $55.2 million), the net containment and holding costs at our North Goonyella Mine (three months, $20.3 million; nine months, $51.7 million), the impact of a longwall move at our Metropolitan Mine (three months, $19.1 million; nine months, $26.0 million) and lower net realized pricing (three months, $13.1 million; nine months, $33.0 million). These negative variances were partially offset by favorable foreign currency impacts (three months, $14.5 million; nine months, $44.8 million) and lower production costs at the North Goonyella Mine due to the prior year impact of a longwall move.
Powder River Basin Mining. Segment Adjusted EBITDA decreased during the three and nine months ended September 30, 2019 as compared to the same periods in the prior year due to the impact of lower volume (three months, $9.8 million; nine months, $62.6 million) as described above, higher costs for materials, services and repairs (three months, $8.3 million; nine months, $7.0 million) and lower net realized coal pricing (three months, $5.7 million; nine months, $17.6 million), partially offset by lower pricing for fuel and explosives (three months, $3.9 million; nine months, $3.1 million) and lower lease expenses due to early lease buyouts (three months, $1.3 million; nine months, $8.0 million).
Midwestern U.S. Mining. Segment Adjusted EBITDA decreased during the three and nine months ended September 30, 2019 as compared to the same periods in the prior year primarily due to the impact of lower volume (three months, $5.5 million; nine months, $12.8 million) and higher costs for materials, services and repairs (three months, $2.8 million; nine months, $3.3 million), partially offset by lower labor costs (three months, $3.4 million) and lower pricing for fuel and explosives (three months, $2.0 million; nine months, $2.4 million).
Western U.S. Mining. Segment Adjusted EBITDA increased during the three and nine months ended September 30, 2019 as compared to the same periods in the prior year primarily due to higher net realized coal pricing (three months, $31.2 million; nine months, $47.5 million) and lower costs for materials, services and repairs (three months, $4.2 million; nine months, $21.5 million), partially offset by the impact of lower volumes (three months, $12.6 million; nine months, $23.6 million). Included in Segment Adjusted EBITDA for the three and nine months ended September 30, 2019 was the net impact associated with the customer’s obligation to fund various post-mining costs at the Kayenta Mine ($14.0 million).


47


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Corporate and Other Adjusted EBITDA. The following table presents a summary of the components of Corporate and Other Adjusted EBITDA:
 
Three Months Ended
 
(Decrease) Increase
 
Nine Months Ended
 
(Decrease) Increase
 
September 30,
 
to Adjusted EBITDA
 
September 30,
 
to Adjusted EBITDA
 
2019
 
2018
 
$
 
%
 
2019
 
2018
 
$
 
%
 
(Dollars in millions)
 
 
 
(Dollars in millions)
 
 
Middlemount (1)
$
(18.8
)
 
$
11.2

 
$
(30.0
)
 
(268
)%
 
$
(4.9
)
 
$
43.0

 
$
(47.9
)
 
(111
)%
Resource management activities (2)
2.3

 
21.3

 
(19.0
)
 
(89
)%
 
6.0

 
42.8

 
(36.8
)
 
(86
)%
Selling and administrative expenses
(32.2
)
 
(38.6
)
 
6.4

 
17
 %
 
(107.8
)
 
(119.7
)
 
11.9

 
10
 %
Transaction costs related to business combinations and joint ventures
(8.2
)
 
(2.5
)
 
(5.7
)
 
(228
)%
 
(9.8
)
 
(2.5
)
 
(7.3
)
 
(292
)%
Other items, net (3)
(6.4
)
 
(10.7
)
 
4.3

 
40
 %
 
(12.8
)
 
(19.1
)
 
6.3

 
33
 %
Corporate and Other Adjusted EBITDA
$
(63.3
)
 
$
(19.3
)
 
$
(44.0
)
 
(228
)%
 
$
(129.3
)
 
$
(55.5
)
 
$
(73.8
)
 
(133
)%
(1) 
Middlemount’s results are before the impact of related changes in deferred tax asset valuation allowance and reserves and amortization of basis difference. Middlemount’s standalone results included (on a 50% attributable basis) aggregate amounts of depreciation, depletion and amortization, asset retirement obligation expenses, net interest expense, and income taxes of $3.1 million and $10.4 million during the three months ended September 30, 2019 and 2018, respectively, and $20.1 million and $37.2 million during the nine months ended September 30, 2019 and 2018, respectively.
(2) 
Includes gains (losses) on certain surplus coal reserve and surface land sales and property management costs and revenues.
(3) 
Includes trading and brokerage activities, costs associated with post-mining activities, certain coal royalty expenses, gains (losses) on certain asset disposals, minimum charges on certain transportation-related contracts and expenses related to our other commercial activities.
The decrease in Corporate and Other Adjusted EBITDA during the three months ended September 30, 2019 as compared to the same period in the prior year was primarily driven by an unfavorable variance in Middlemount’s results due to suspended operations and a significant change to the mine plan following a highwall failure in late June 2019 and a $20.5 million resource management gain recorded in the prior year period related to the sale of surplus coal resources associated with the Millennium Mine as further described in Note 16. “Other Events” of the accompanying unaudited condensed consolidated financial statements.
During the nine months ended September 30, 2019, Corporate and Other Adjusted EBITDA declined as compared to the same period in the prior year primarily due to an unfavorable variance in the Middlemount’s results as described above, resource management gains recorded in the prior year period related to the sale of surplus land assets in Queensland’s Bowen Basin ($20.6 million) and the sale of surplus coal resources associated with the Millennium Mine ($20.5 million) and a $7.1 million gain recorded in the prior year period related to the sale of our 50% interest in the Red Mountain Joint Venture with BHP Billiton Mitsui Coal Pty Ltd, as further described in Note 16. “Other Events” of the accompanying unaudited condensed consolidated financial statements. These unfavorable results were partially offset by favorable results from trading and brokerage activities and lower selling and administrative expenses for outside services and incentive compensation.


48


Table of Contents



(Loss) Income From Continuing Operations, Net of Income Taxes
The following table presents (loss) income from continuing operations, net of income taxes:
 
Three Months Ended
 
(Decrease) Increase
 
Nine Months Ended
 
(Decrease) Increase
 
September 30,
 
to Income
 
September 30,
 
to Income
 
2019
 
2018
 
$
 
%
 
2019
 
2018
 
$
 
%
 
(Dollars in millions)
 
 
 
(Dollars in millions)
 
 
Adjusted EBITDA (1)
$
150.3

 
$
372.1

 
$
(221.8
)
 
(60
)%
 
$
632.2

 
$
1,105.6

 
$
(473.4
)
 
(43
)%
Depreciation, depletion and amortization
(141.5
)
 
(169.6
)
 
28.1

 
17
 %
 
(479.4
)
 
(503.1
)
 
23.7

 
5
 %
Asset retirement obligation expenses
(15.5
)
 
(12.4
)
 
(3.1
)
 
(25
)%
 
(44.6
)
 
(37.9
)
 
(6.7
)
 
(18
)%
Asset impairment
(20.0
)
 

 
(20.0
)
 
n.m.

 
(20.0
)
 

 
(20.0
)
 
n.m.

Provision for North Goonyella equipment loss

 
(49.3
)
 
49.3

 
100
 %
 
(24.7
)
 
(49.3
)
 
24.6

 
50
 %
North Goonyella insurance recovery - equipment

 

 

 
n.m.

 
91.1

 

 
91.1

 
n.m.

Changes in deferred tax asset valuation allowance and reserves and amortization of basis difference related to equity affiliates

 
6.1

 
(6.1
)
 
(100
)%
 
(0.3
)
 
22.1

 
(22.4
)
 
(101
)%
Interest expense
(35.4
)
 
(38.2
)
 
2.8

 
7
 %
 
(107.2
)
 
(112.8
)
 
5.6

 
5
 %
Loss on early debt extinguishment

 

 

 
n.m.

 

 
(2.0
)
 
2.0

 
100
 %
Interest income
7.0

 
10.1

 
(3.1
)
 
(31
)%
 
22.5

 
24.3

 
(1.8
)
 
(7
)%
Reorganization items, net

 

 

 
n.m.

 

 
12.8

 
(12.8
)
 
(100
)%
Unrealized (losses) gains on economic hedges
(18.0
)
 
(26.8
)
 
8.8

 
33
 %
 
44.2

 
(36.3
)
 
80.5

 
222
 %
Unrealized gains (losses) on non-coal trading derivative contracts
0.3

 
0.3

 

 
 %
 
0.2

 
(1.4
)
 
1.6

 
114
 %
Fresh start take-or-pay contract-based intangible recognition
2.7

 
5.4

 
(2.7
)
 
(50
)%
 
13.9

 
21.5

 
(7.6
)
 
(35
)%
Income tax provision
(4.2
)
 
(13.8
)
 
9.6

 
70
 %
 
(26.0
)
 
(31.3
)
 
5.3

 
17
 %
(Loss) income from continuing operations, net of income taxes
$
(74.3
)
 
$
83.9

 
$
(158.2
)
 
(189
)%
 
$
101.9

 
$
412.2

 
$
(310.3
)
 
(75
)%
(1) 
This is a financial measure not recognized in accordance with U.S. GAAP. Refer to the “Reconciliation of Non-GAAP Financial Measures” section below for definitions and reconciliations to the most comparable measures under U.S. GAAP.
Depreciation, Depletion and Amortization. The following table presents a summary of depreciation, depletion and amortization expense by segment:
 
Three Months Ended
 
(Decrease) Increase
 
Nine Months Ended
 
(Decrease) Increase
 
September 30,
 
to Income
 
September 30,
 
to Income
 
2019
 
2018
 
$
 
%
 
2019
 
2018
 
$
 
%
 
(Dollars in millions)
 
 
 
(Dollars in millions)
 
 
Seaborne Thermal Mining
$
(22.4
)
 
$
(21.4
)
 
$
(1.0
)
 
(5
)%
 
$
(67.6
)
 
$
(63.9
)
 
$
(3.7
)
 
(6
)%
Seaborne Metallurgical Mining
(28.7
)
 
(31.9
)
 
3.2

 
10
 %
 
(99.9
)
 
(96.8
)
 
(3.1
)
 
(3
)%
Powder River Basin Mining
(38.3
)
 
(46.4
)
 
8.1

 
17
 %
 
(110.9
)
 
(142.6
)
 
31.7

 
22
 %
Midwestern U.S. Mining
(22.3
)
 
(29.4
)
 
7.1

 
24
 %
 
(69.8
)
 
(85.2
)
 
15.4

 
18
 %
Western U.S. Mining
(27.8
)
 
(38.9
)
 
11.1

 
29
 %
 
(124.8
)
 
(107.8
)
 
(17.0
)
 
(16
)%
Corporate and Other
(2.0
)
 
(1.6
)
 
(0.4
)
 
(25
)%
 
(6.4
)
 
(6.8
)
 
0.4

 
6
 %
Total
$
(141.5
)
 
$
(169.6
)
 
$
28.1

 
17
 %
 
$
(479.4
)
 
$
(503.1
)
 
$
23.7

 
5
 %


49


Table of Contents



Additionally, the following table presents a summary of our weighted-average depletion rate per ton for active mines in each of our mining segments:
 
Three Months Ended
 
Nine Months Ended
 
September 30,
 
September 30,
 
2019
 
2018
 
2019
 
2018
Seaborne Thermal Mining
$
1.78

 
$
1.69

 
$
1.85

 
$
1.80

Seaborne Metallurgical Mining
3.97

 
0.94

 
3.29

 
0.98

Powder River Basin Mining
0.81

 
0.81

 
0.81

 
0.81

Midwestern U.S. Mining
1.15

 
0.91

 
0.98

 
0.88

Western U.S. Mining
1.16

 
2.37

 
1.92

 
2.33

Depreciation, depletion and amortization expense decreased during the three months ended September 30, 2019 as compared to the same period in the prior year primarily due to lower amortization of the fair value of certain U.S. coal supply agreements ($18.8 million), decreased expense at our Kayenta Mine due to its closure during the third quarter of 2019 ($10.3 million) and decreased expense at our North Goonyella Mine after the fire due to lower sales volumes and asset impairments ($4.6 million), partially offset by the acquisition of the Shoal Creek Mine in the fourth quarter of 2018 ($8.4 million).
Depreciation, depletion and amortization expense decreased during the nine months ended September 30, 2019 as compared to the same period in the prior year primarily due to lower amortization of the fair value of certain U.S. coal supply agreements ($58.1 million) and decreased expense at our North Goonyella Mine after the fire due to lower sales volumes and asset impairments ($15.0 million), offset by the acquisition the Shoal Creek Mine in the fourth quarter of 2018 ($33.9 million) and the acceleration of the closure of the Kayenta Mine ($17.0 million).
Asset Impairment. Asset impairment charges were recorded during the three and nine months ended September 30, 2019 related to the estimated fair value of our Wildcat Hills Underground Mine, which is expected to close in the fourth quarter of 2019.
Provision for North Goonyella Equipment Loss. Provisions for expected equipment losses related to the events at our North Goonyella Mine were recorded during the three and nine months ended September 30, 2018 ($49.3 million) and during the nine months ended September 30, 2019 ($24.7 million) as discussed in Note 16. “Other Events” in the accompanying unaudited condensed consolidated financial statements. The current year provision is incremental to the provisions recorded during 2018 and represents the best estimate of potential loss associated with these events based on assessments made to date.
North Goonyella Insurance Recovery - Equipment. During the nine months ended September 30, 2019, we entered into an insurance claim settlement agreement with our insurance providers related to North Goonyella equipment losses and recorded a $125.0 million insurance recovery, as discussed in Note 16. “Other Events” in the accompanying unaudited condensed consolidated financial statements. Of this amount, Adjusted EBITDA excludes an allocated amount applicable to total equipment losses recognized at the time of the insurance recovery settlement, which consisted of $24.7 million and $66.4 million recognized during the nine months ended September 30, 2019 and the year ended December 31, 2018, respectively. The remaining $33.9 million, applicable to incremental costs and business interruption losses, is included in Adjusted EBITDA for the nine months ended September 30, 2019.
Changes in Deferred Tax Asset Valuation Allowance and Reserves and Amortization of Basis Difference Related to Equity Affiliates. During the year ended December 31, 2018 the Company determined that a valuation allowance on Middlemount’s net deferred tax position was no longer necessary based on recent cumulative earnings and expectation of future earnings. The prior period amount consisted of the valuation allowance reduction due to income earned by Middlemount prior to the release of the valuation allowance.
Loss on Early Debt Extinguishment. The loss on early debt extinguishment recorded during the nine months ended September 30, 2018, related to the early repayment of principal under our Senior Secured Term Loan as described in Note 13. “Long-term Debt” to the accompanying unaudited condensed consolidated financial statements.
Reorganization Items, Net. The reorganization items recorded during the nine months ended September 30, 2018 were impacted by a favorable adjustment to our former bankruptcy claims accrual.


50


Table of Contents



Unrealized (Losses) Gains on Economic Hedges. Unrealized (losses) gains primarily relate to mark-to-market activity from economic hedge activities intended to hedge future coal sales. For additional information, refer to Note 8. “Derivatives and Fair Value Measurements” to the accompanying unaudited condensed consolidated financial statements.
Fresh Start Take-or-Pay Contract-Based Intangible Recognition. Included in the fresh start reporting adjustments were contract-based intangible liabilities for port and rail take-or-pay contracts. During the three and nine months ended September 30, 2019 and 2018, we ratably recognized these contract-based intangible liabilities. For additional details, refer to Note 9. “Intangible Contract Assets and Liabilities” to the accompanying unaudited condensed consolidated financial statements.
Income Tax Provision. The changes in the income tax provision for the three and nine months ended September 30, 2019 as compared to the prior year periods were primarily due to changes in forecasted taxable income. The tax provisions recorded in the three and nine months ended September 30, 2019 and 2018 were computed using the annual effective tax rate method and were comprised primarily of the expected statutory tax provision offset by foreign rate differential and changes in valuation allowances. Refer to Note 12. “Income Taxes” in the accompanying unaudited condensed consolidated financial statements for additional information.
Net (Loss) Income Attributable to Common Stockholders
The following table presents net (loss) income attributable to common stockholders:
 
Three Months Ended
 
(Decrease) Increase
 
Nine Months Ended
 
(Decrease) Increase
 
September 30,
 
to Income
 
September 30,
 
to Income
 
2019
 
2018
 
$
 
%
 
2019
 
2018
 
$
 
%
 
(Dollars in millions)
 
 
 
(Dollars in millions)
 
 
(Loss) income from continuing operations, net of income taxes
$
(74.3
)
 
$
83.9

 
$
(158.2
)
 
(189
)%
 
$
101.9

 
$
412.2

 
$
(310.3
)
 
(75
)%
Loss from discontinued operations, net of income taxes
(3.8
)
 
(4.1
)
 
0.3

 
7
 %
 
(10.6
)
 
(9.0
)
 
(1.6
)
 
(18
)%
Net (loss) income
(78.1
)
 
79.8

 
(157.9
)
 
(198
)%
 
91.3

 
403.2

 
(311.9
)
 
(77
)%
Less: Series A Convertible Preferred Stock dividends

 

 

 
n.m.

 

 
102.5

 
(102.5
)
 
(100
)%
Less: Net income attributable to noncontrolling interests
4.7

 
8.3

 
(3.6
)
 
(43
)%
 
12.8

 
8.9

 
3.9

 
44
 %
Net (loss) income attributable to common stockholders
$
(82.8
)
 
$
71.5

 
$
(154.3
)
 
(216
)%
 
$
78.5

 
$
291.8

 
$
(213.3
)
 
(73
)%
Series A Convertible Preferred Stock Dividends. The convertible preferred stock dividends for the nine months ended September 30, 2018 were comprised of the deemed dividends granted for all remaining shares of convertible preferred stock that were converted as of January 31, 2018.
Diluted Earnings per Share (EPS)
The following table presents diluted EPS:
 
Three Months Ended
 
Decrease
 
Nine Months Ended
 
Decrease
 
September 30,
 
to EPS
 
September 30,
 
to EPS
 
2019
 
2018
 
$
 
%
 
2019
 
2018
 
$
 
%
Diluted EPS attributable to common stockholders:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
(Loss) income from continuing operations
$
(0.77
)
 
$
0.63

 
$
(1.40
)
 
(222
)%
 
$
0.83

 
$
2.40

 
$
(1.57
)
 
(65
)%
Loss from discontinued operations
(0.04
)
 
(0.04
)
 

 
 %
 
(0.10
)
 
(0.07
)
 
(0.03
)
 
(43
)%
Net (loss) income attributable to common stockholders
$
(0.81
)
 
$
0.59

 
$
(1.40
)
 
(237
)%
 
$
0.73

 
$
2.33

 
$
(1.60
)
 
(69
)%


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Diluted EPS is commensurate with the changes in results from continuing operations and discontinued operations during that period. Diluted EPS reflects weighted average diluted common shares outstanding of 102.2 million and 120.3 million for the three months ended September 30, 2019 and 2018, respectively, and 107.4 million and 123.1 million for the nine months ended September 30, 2019 and 2018, respectively.
Reconciliation of Non-GAAP Financial Measures
Adjusted EBITDA is defined as (loss) income from continuing operations before deducting net interest expense, income taxes, asset retirement obligation expenses, depreciation, depletion and amortization and reorganization items, net. Adjusted EBITDA is also adjusted for the discrete items that management excluded in analyzing each of our segment’s operating performance, as displayed in the reconciliations below.
 
Three Months Ended
 
Nine Months Ended
 
September 30,
 
September 30,
 
2019
 
2018
 
2019
 
2018
 
(Dollars in millions)
(Loss) income from continuing operations, net of income taxes
$
(74.3
)
 
$
83.9

 
$
101.9

 
$
412.2

Depreciation, depletion and amortization
141.5

 
169.6

 
479.4

 
503.1

Asset retirement obligation expenses
15.5

 
12.4

 
44.6

 
37.9

Asset impairment
20.0

 

 
20.0

 

Provision for North Goonyella equipment loss

 
49.3

 
24.7

 
49.3

North Goonyella insurance recovery - equipment

 

 
(91.1
)
 

Changes in deferred tax asset valuation allowance and reserves and amortization of basis difference related to equity affiliates

 
(6.1
)
 
0.3

 
(22.1
)
Interest expense
35.4

 
38.2

 
107.2

 
112.8

Loss on early debt extinguishment

 

 

 
2.0

Interest income
(7.0
)
 
(10.1
)
 
(22.5
)
 
(24.3
)
Reorganization items, net

 

 

 
(12.8
)
Unrealized losses (gains) on economic hedges
18.0

 
26.8

 
(44.2
)
 
36.3

Unrealized (gains) losses on non-coal trading derivative contracts
(0.3
)
 
(0.3
)
 
(0.2
)
 
1.4

Fresh start take-or-pay contract-based intangible recognition
(2.7
)
 
(5.4
)
 
(13.9
)
 
(21.5
)
Income tax provision
4.2

 
13.8

 
26.0

 
31.3

Total Adjusted EBITDA
$
150.3

 
$
372.1

 
$
632.2

 
$
1,105.6

Revenues per Ton and Adjusted EBITDA Margin per Ton are equal to revenues by segment and Adjusted EBITDA by segment, respectively, divided by segment tons sold. Costs per Ton is equal to Revenues per Ton less Adjusted EBITDA Margin per Ton, and are reconciled to operating costs and expenses as follows:
 
Three Months Ended
 
Nine Months Ended
 
September 30,
 
September 30,
 
2019
 
2018
 
2019
 
2018
 
(Dollars in millions)
Operating costs and expenses
$
906.2

 
$
1,047.9

 
$
2,712.8

 
$
3,051.6

Unrealized gains (losses) on non-coal trading derivative contracts
0.3

 
0.3

 
0.2

 
(1.4
)
Fresh start take-or-pay contract-based intangible recognition
2.7

 
5.4

 
13.9

 
21.5

North Goonyella insurance recovery - cost recovery and business interruption

 

 
(33.9
)
 

Net periodic benefit costs, excluding service cost
4.9

 
4.5

 
14.6

 
13.6

Total Reporting Segment Costs
$
914.1

 
$
1,058.1

 
$
2,707.6

 
$
3,085.3



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The following table presents Reporting Segment Costs by reporting segment:
 
Three Months Ended
 
Nine Months Ended
 
September 30,
 
September 30,
 
2019
 
2018
 
2019
 
2018
 
(Dollars in millions)
Seaborne Thermal Mining
$
172.7

 
$
159.8

 
$
474.8

 
$
459.4

Seaborne Metallurgical Mining
232.5

 
279.6

 
704.7

 
838.4

Powder River Basin Mining
262.9

 
285.5

 
756.2

 
859.8

Midwestern U.S. Mining
140.0

 
169.8

 
422.6

 
495.8

Western U.S. Mining
104.1

 
127.6

 
306.9

 
345.0

Corporate and Other
1.9

 
35.8

 
42.4

 
86.9

Total Reporting Segment Costs
$
914.1

 
$
1,058.1

 
$
2,707.6

 
$
3,085.3

The following tables present tons sold, revenues, Reporting Segment Costs and Adjusted EBITDA by mining segment:
 
Three Months Ended September 30, 2019
 
Seaborne Thermal Mining
 
Seaborne Metallurgical Mining
 
Powder River Basin Mining
 
Midwestern
U.S. Mining
 
Western
U.S. Mining
 
(Amounts in millions, except per ton data)
Tons sold
4.9

 
1.8

 
30.2

 
4.2

 
3.0

 
 
 
 
 
 
 
 
 
 
Revenues
$
249.5

 
$
216.3

 
$
333.6

 
$
176.0

 
$
150.4

Reporting Segment Costs
172.7

 
232.5

 
262.9

 
140.0

 
104.1

Adjusted EBITDA
76.8

 
(16.2
)
 
70.7

 
36.0

 
46.3

 
 
 
 
 
 
 
 
 
 
Revenues per Ton
$
51.06

 
$
120.94

 
$
11.02

 
$
42.33

 
$
49.73

Costs per Ton
35.33

 
130.01

 
8.69

 
33.66

 
34.45

Adjusted EBITDA Margin per Ton
15.73

 
(9.07
)
 
2.33

 
8.67

 
15.28

 
Three Months Ended September 30, 2018
 
Seaborne Thermal Mining
 
Seaborne Metallurgical Mining
 
Powder River Basin Mining
 
Midwestern
U.S. Mining
 
Western
U.S. Mining
 
(Amounts in millions, except per ton data)
Tons sold
4.8

 
2.8

 
31.7

 
4.9

 
4.0

 
 
 
 
 
 
 
 
 
 
Revenues
$
305.1

 
$
370.3

 
$
373.7

 
$
208.5

 
$
156.1

Reporting Segment Costs
159.8

 
279.6

 
285.5

 
169.8

 
127.6

Adjusted EBITDA
145.3

 
90.7

 
88.2

 
38.7

 
28.5

 
 
 
 
 
 
 
 
 
 
Revenues per Ton
$
63.50

 
$
132.50

 
$
11.80

 
$
42.45

 
$
38.91

Costs per Ton
33.20

 
100.14

 
9.01

 
34.57

 
31.80

Adjusted EBITDA Margin per Ton
30.30

 
32.36

 
2.79

 
7.88

 
7.11



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Nine Months Ended September 30, 2019
 
Seaborne Thermal Mining
 
Seaborne Metallurgical Mining
 
Powder River Basin Mining
 
Midwestern
U.S. Mining
 
Western
U.S. Mining
 
(Amounts in millions, except per ton data)
Tons sold
14.1

 
6.2

 
80.5

 
12.3

 
10.0

 
 
 
 
 
 
 
 
 
 
Revenues
$
720.7

 
$
831.7

 
$
903.5

 
$
522.6

 
$
448.2

Reporting Segment Costs
474.8

 
704.7

 
756.2

 
422.6

 
306.9

Adjusted EBITDA
245.9

 
127.0

 
147.3

 
100.0

 
141.3

 
 
 
 
 
 
 
 
 
 
Revenues per Ton
$
51.14

 
$
134.80

 
$
11.22

 
$
42.48

 
$
44.80

Costs per Ton
33.69

 
114.22

 
9.39

 
34.35

 
30.68

Adjusted EBITDA Margin per Ton
17.45

 
20.58

 
1.83

 
8.13

 
14.12

 
Nine Months Ended September 30, 2018
 
Seaborne Thermal Mining
 
Seaborne Metallurgical Mining
 
Powder River Basin Mining
 
Midwestern
U.S. Mining
 
Western
U.S. Mining
 
(Amounts in millions, except per ton data)
Tons sold
13.6

 
8.7

 
90.3

 
14.3

 
11.2

 
 
 
 
 
 
 
 
 
 
Revenues
$
773.9

 
$
1,254.0

 
$
1,084.5

 
$
607.7

 
$
439.4

Reporting Segment Costs
459.4

 
838.4

 
859.8

 
495.8

 
345.0

Adjusted EBITDA
314.5

 
415.6

 
224.7

 
111.9

 
94.4

 
 
 
 
 
 
 
 
 
 
Revenues per Ton
$
57.09

 
$
143.44

 
$
12.01

 
$
42.41

 
$
39.23

Costs per Ton
33.89

 
95.90

 
9.52

 
34.60

 
30.80

Adjusted EBITDA Margin per Ton
23.20

 
47.54

 
2.49

 
7.81

 
8.43

Free Cash Flow is defined as net cash provided by operating activities less net cash used in investing activities and excludes cash outflows related to business combinations. See the table below for a reconciliation of Free Cash Flow to its most comparable measure under U.S. GAAP.
 
Nine Months Ended
 
September 30,
 
2019
 
2018
 
(Dollars in millions)
Net cash provided by operating activities
$
552.6

 
$
1,260.8

Net cash used in investing activities
(147.6
)
 
(65.5
)
Add back: Amount attributable to acquisition of Shoal Creek Mine
2.4

 

Free Cash Flow
$
407.4

 
$
1,195.3

Outlook
As part of its normal planning and forecasting process, Peabody utilizes a broad approach to develop macroeconomic assumptions for key variables, including country-level gross domestic product, industrial production, fixed asset investment and third-party inputs, driving detailed supply and demand projections for key demand centers for coal, electricity generation and steel. Specific to the U.S., the Company evaluates individual plant needs, including expected retirements, on a plant by plant basis in developing its demand models. Supply models and cost curves concentrate on major supply regions/countries that impact the regions in which the Company operates.
Our estimates involve risks and uncertainties and are subject to change based on various factors as described more fully in the “Cautionary Notice Regarding Forward-Looking Statements” section contained within this Item 2.


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Our near-term outlook is intended to coincide with the next 12 to 24 months, with subsequent periods addressed in our long-term outlook.
Near-Term Outlook
Seaborne Thermal Coal. Subdued seaborne thermal coal pricing persisted in the third quarter as continued weakness in Europe, low liquefied natural gas prices and sustained strength in Indonesian and Russian exports weighed on fundamentals. As a result, the average third-quarter Newcastle-spec prompt price of approximately $68 per tonne marked a 15% decline compared to the second quarter average. During September 2019, thermal coal prices pulled up from trough levels and have stabilized in recent weeks.
Year-to-date Vietnam imports have more than doubled, helping to drive a 16 million tonne increase in ASEAN imports through September. Combined, China, India and ASEAN countries continue to show strength and reported year-to-date import growth of 36 million tonnes. In addition, coal inventory levels at India utilities have declined in recent months, in part due to an extended monsoon season and weak domestic production.
From the supply side, Indonesian and Russian exports have increased year-to-date, contributing to the weak pricing environment. Pacific coal continues to gain relative to Atlantic, with both U.S. and Colombian exports down substantially in response to unfavorable netback pricing.
Longer-term, we expect growing demand from ASEAN countries to offset declines in the Atlantic as urbanization and the buildout of new coal-fueled power capacity drive the need for imports. Australia is well-positioned to serve these growing demand centers and offers the higher-quality coal typically needed for advanced coal technologies.
Seaborne Metallurgical Coal. While average seaborne hard coking coal spot pricing declined approximately 20% in the third quarter from second quarter levels, pricing rebounded from three-year lows in early October on potential restocking activities leading into year-end and a widening arbitrage favoring seaborne coal delivered into China.
Chinese metallurgical coal imports rose approximately 20% year-to-date through September on increased pig iron production, with August marking the highest metallurgical coal import month on record. Looking to the fourth quarter, the pricing arbitrage between domestic Chinese coking coal and imports is expected to create tension with import restrictions.
In line with our expectations, India continues to increase metallurgical coal imports, with September year-to-date imports rising 7%. Imports are expected to continue to rise to meet growing steel needs as India lacks the required quality and quantity of domestic metallurgical coal.
Regarding seaborne metallurgical coal supply, growth in Australian and Russian exports have been muted by declining U.S. shipments. Capital investment in both metallurgical and thermal coal has declined in recent years as coal use continues to increase. According to Wood Mackenzie, capital investment in major coal producing regions between 2016 and 2018 is less than half of the levels observed during the last peak cycle of 2011 to 2013.
U.S. Thermal Coal. Total electricity generation load declined 2% year-to-date through September. Low natural gas prices through the third quarter of the year, along with the impact of increasing renewables and buildout of new natural gas capacity have resulted in coal’s share of the electricity mix falling to 24% year-to-date through September.
Total U.S. coal supply declined approximately 3% year-to-date. As a result of significant flooding earlier in the year and the idling of some mines in the basin, the PRB has been most impacted, with year-to-date production down approximately 8%.
We estimate domestic U.S. coal demand by U.S. utilities to be most impacted by natural gas prices and further coal plant retirements.
Long-Term Outlook
There were no significant changes to our Long-term Outlook subsequent to December 31, 2018. Information regarding our Long-term Outlook is outlined in Part II. Item 7. “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in our Annual Report on Form 10-K for the year ended December 31, 2018.
Regulatory Update
Other than as described in the following section, there were no significant changes to our regulatory matters subsequent to December 31, 2018. Information regarding our regulatory matters is outlined in Part I, Item 1. “Business” in our Annual Report on Form 10-K for the year ended December 31, 2018.


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Regulatory Matters - U.S.
Clean Air Act (CAA). The CAA, enacted in 1970, and comparable state and tribal laws that regulate air emissions affect our U.S. coal mining operations both directly and indirectly.
Direct impacts on coal mining and processing operations may occur through the CAA permitting requirements and/or emission control requirements relating to particulate matter (PM), nitrogen dioxide, ozone and sulfur dioxide (SO2). In recent years the United States Environmental Protection Agency (EPA) has adopted more stringent national ambient air quality standards (NAAQS) for PM, nitrogen oxide, ozone and SO2. It is possible that these modifications as well as future modifications to NAAQS could directly or indirectly impact our mining operations in a manner that includes, but is not limited to, designating new nonattainment areas or expanding existing nonattainment areas, serving as a basis for changes in vehicle emission standards or prompting additional local control measures pursuant to state implementation plans required to address revised NAAQS.
In 2009, the EPA adopted revised rules to add more stringent PM emissions limits for coal preparation and processing plants constructed or modified after April 28, 2008. The PM NAAQS was thereafter revised and made more stringent in 2012. In 2015, the EPA issued a final rule setting the ozone NAAQS at 70 ppb. (80 Fed. Reg. 65,292, (Oct. 25, 2015)). The primary ozone standard was upheld by the United States Court of Appeals for the D.C. Circuit (D.C. Circuit) in Murray Energy v. EPA, (D.C. Cir. 2019), Slip Op. 15-1385. The court, however, remanded the secondary ozone NAAQS standard to EPA and vacated a “grandfathering” provision concerning the use of the prior ozone NAAQS in certain permitting actions.
The EPA is additionally considering revisions to the 2015 PM NAAQS as part of the periodic review process required by the CAA, with any revisions to the standards projected for late 2020, the same timeframe as it contemplates possible revisions for the 2015 ozone NAAQS. More stringent PM or ozone standards would require new state implementation plans to be developed and filed with the EPA and may trigger additional control technology for mining equipment or result in additional challenges to permitting and expansion efforts. This could also be the case with respect to the implementation for other NAAQS for nitrogen oxide and SO2 although the EPA promulgated a final rule on March 18, 2019 (84 Fed. Reg. 9866) that retains, without revision, the existing NAAQS for SO2 of 75 ppb averaged over an hour.
The CAA also indirectly, but significantly affects the U.S. coal industry by extensively regulating the air emissions of SO2, nitrogen oxides, mercury, PM and other substances emitted by coal-fueled electricity generating plants, imposing more capital and operating costs on such facilities. In addition, other CAA programs may require further emission reductions to address the interstate transport of air pollution or regional haze. The air emissions programs that may affect our operations, directly or indirectly, include, but are not limited to, the Acid Rain Program, interstate transport rules such as the Cross-State Air Pollution Rule (CSAPR) and the CSAPR Update Rule, New Source Performance Standards (NSPS), Maximum Achievable Control Technology (MACT) emissions limits for Hazardous Air Pollutants, the Regional Haze program and source permitting programs, including requirements related to New Source Review.
In addition, since 2011, the EPA has required underground coal mines to report on their greenhouse gas emissions. Regulations regarding reporting requirements for underground coal mines were updated in 2016 and now include the ability to cease reporting if mines are abandoned and sealed. At present, however, the EPA does not directly regulate such emissions.
EPA Regulation of Greenhouse Gas Emissions From Existing Fossil Fuel-Fired Electricity Utility Generating Units (EGUs). On October 23, 2015, the EPA published a final rule in the Federal Register regulating greenhouse gas emissions from existing fossil fuel-fired EGUs under section 111(d) of the CAA (80 Fed. Reg. 64,662 (Oct. 23, 2015)). The rule (known as the Clean Power Plan or CPP) establishes emission guidelines for states to follow in developing plans to reduce greenhouse gas emissions from existing fossil fuel-fired EGUs. The CPP required that the states individually or collectively create systems that would reduce carbon emissions from any EGU located within their borders by 28% in 2025 and 32% in 2030 (compared with a 2005 baseline).
Following Federal Register publication, 39 separate petitions for review of the CPP by approximately 157 entities were filed in the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit). The petitions reflect challenges by 27 states and governmental entities, as well as by utilities, industry groups, trade associations, coal companies and other entities. The lawsuits were consolidated with the case filed by West Virginia and Texas (in which other states also joined) (D.C. Cir. No. 15-1363). On October 29, 2015, we filed a motion to intervene in the case filed by West Virginia and Texas, in support of the petitioning states. The motion was granted on January 11, 2016. Numerous states and other entities also intervened in support of the EPA.


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On February 9, 2016, the U.S. Supreme Court granted a motion to stay implementation of the CPP until the legal challenges are resolved. Thereafter, oral arguments in the case were heard in the D.C. Circuit sitting en banc. On April 28, 2017, the D.C. Circuit granted the EPA’s motion to hold the case in abeyance while the agency reconsidered the rule. The D.C. Circuit case has been in abeyance since, so no opinion has been issued.
In October 2017, the EPA proposed to repeal the CPP. (82 Fed. Reg. 48,035 (Oct. 16, 2017)). In August 2018, the EPA issued a proposed rule to replace the CPP, the Affordable Clean Energy (ACE) Rule. (83 Fed. Reg. 44,746 (August 31, 2018)). On June 19, 2019, the EPA issued a combined package that finalizes the CPP repeal rule as well as the replacement rule, ACE. Repeal of the Clean Power Plan; Emission Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating Units; Revisions to Emission Guidelines Implementing Regulations, EPA-HQ-OAR-2017-0355.
The final ACE rule sets emissions guidelines for greenhouse gas emissions from existing EGUs based on using efficiency heat rate improvements as “Best System of Emission Reduction” measures. The EPA’s final rule also revises the CAA Section 111(d) regulations to give the states greater flexibility on the content and timing of their state plans. Proposed revisions to the regulations under the New Source Review (NSR) program that were part of the ACE proposal have now been separated, and will be issued in a separate final rule later this year.
Based on the EPA’s final rules repealing and replacing the CPP, petitioners in the D.C. Circuit matter seeking review of CPP, including Peabody, filed a motion to dismiss, which the court granted in September 2019. Meanwhile, challengers to the ACE Rule have filed petitions for judicial review, and that new litigation is expected to continue through 2019 and into 2020.
Cross State Air Pollution Rule (CSAPR) and CSAPR Update Rule. On July 6, 2011, the EPA finalized the CSAPR, which requires the District of Columbia and 27 states from Texas eastward (not including the New England states or Delaware) to reduce power plant emissions that cross state lines and significantly contribute to ozone and/or fine particle pollution in other states. Following litigation in the D.C. Circuit and U.S. Supreme Court, the first phase of the nitrogen oxide and SO2 emissions reductions required by CSAPR commenced in January 2015; further reductions of both pollutants in the second phase of CSAPR became effective in January 2017. The EPA subsequently revised CSAPR requirements for the state of Texas to remove that state from second phase requirements regarding SO2 (82 Fed. Reg. 45,481 (Sept. 29, 2017)).
On October 26, 2016, the EPA promulgated the CSAPR Update Rule to address implementation of the 2008 ozone national air quality standards. This rule imposed further reductions in nitrogen oxides in 2017 in 22 states subject to CSAPR. Several states and utilities as well as agricultural and industry groups filed petitions for review of the CSAPR Update Rule in the D.C. Circuit. The CSAPR Update Rule was subsequently remanded to EPA to address the extent and timing of required emission reductions. Wisconsin v. EPA , No. 16-1406 (D.C. Cir. 2019). At this time, it is unknown whether rehearing will be sought.
In 2018, EPA also issued a final determination that the existing CSAPR Update fully addressed the CAA’s “good neighbor” requirements for 20 states with respect to the 2008 ground-level ozone standard. 83 Fed. Reg. 65,878 (Dec. 21, 2018).This determination was also challenged in the D.C. Circuit (No. 19-1019). On October 1, 2019, the D.C. Circuit issued a judgment vacating this rule on the basis of the court’s decision in Wisconsin. At this time, it is unknown whether rehearing will be sought.
Mercury and Air Toxic Standards (MATS). The EPA published the final MATS rule in the Federal Register on February 16, 2012. The MATS rule revised the NSPS for nitrogen oxides, SO2 and PM for new and modified coal-fueled electricity generating plants, and imposed MACT emission limits on hazardous air pollutants (HAPs) from new and existing coal-fueled and oil-fueled electric generating plants. MACT standards limit emissions of mercury, acid gas HAPs, non-mercury HAP metals and organic HAPs. The rule provided three years for compliance with MACT standards and a possible fourth year if a state permitting agency determined that such was necessary for the installation of controls.
Following issuance of the final rule, numerous petitions for review were filed. The D.C. Circuit upheld the NSPS portion of the rulemaking in a unanimous decision on March 11, 2014, and upheld the limits on HAPs against all challenges on April 15, 2014, in a two-to-one decision. Industry groups and a number of states filed and were granted review of the D.C. Circuit decision in the U.S. Supreme Court. On June 29, 2015 the U.S. Supreme Court held that the EPA interpreted the CAA unreasonably when it deemed cost irrelevant to the decision to regulate HAPs from power plants. The court reversed the D.C. Circuit and remanded the case for further proceedings. On December 1, 2015, in response to the court’s decision the EPA published a proposed supplemental finding in the Federal Register that consideration of costs does not alter the EPA’s previous determination regarding the control of HAPs in the MATS rule. On December 15, 2015, the D.C. Circuit issued an order providing that the rule will remain in effect while the EPA responds to the U.S. Supreme Court decision.


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On April 14, 2016, the EPA issued a final supplemental finding that largely tracked its proposed finding. Several states, companies and industry groups challenged that supplemental finding in the D.C. Circuit in separate petitions for review, which were subsequently consolidated (D.C. Cir. No. 116-1127). Several states and environmental groups also filed as intervenors for the respondent EPA. Although briefing in this litigation has concluded, the case remains in abeyance.
On December 27, 2018, the EPA issued a proposed revised Supplemental Cost Finding for the MATS rule that would revoke the determination that regulating HAPs from coal-fired power plants is “appropriate and necessary” under Section 112(n)(1)(A) of the CAA. The finding was based on an EPA assessment that health and environmental benefits from the MATS rule that are not directly related to mercury pollution should not be included in the benefit portion of the analysis. In the new proposed cost-benefit analysis, the EPA found the costs “grossly outweigh” any possible benefits. The comment period for this proposed rule has now closed, and the final rule is expected in November 2019.
Clean Water Act (CWA). The CWA of 1972 directly impacts U.S. coal mining operations by requiring effluent limitations and treatment standards for wastewater discharge from mines through the National Pollutant Discharge Elimination System (NPDES). Regular monitoring, reporting and performance standards are requirements of NPDES permits that govern the discharge of water from mine-related point sources into receiving waters.
The U.S. Army Corps of Engineers (Corps) regulates certain activities affecting navigable waters and waters of the U.S., including wetlands. Section 404 of the CWA requires mining companies to obtain Corps permits to place material in streams for the purpose of creating slurry ponds, water impoundments, refuse areas, valley fills or other mining activities.
States are empowered to develop and apply “in stream” water quality standards. These standards are subject to change and must be approved by the EPA. Discharges must either meet state water quality standards or be authorized through available regulatory processes such as alternate standards or variances. “In stream” standards vary from state to state. Additionally, through the CWA section 401 certification program, states have approval authority over federal permits or licenses that might result in a discharge to their waters. States consider whether the activity will comply with their water quality standards and other applicable requirements in deciding whether or not to certify the activity. On August 9, 2019, the EPA issued a proposed rule that would limit states’ authority by allowing the EPA to certify projects over state objections.
A final rule defining the scope of waters protected under the CWA (commonly called the Waters of the United States (WOTUS Rule)), was published by the EPA and the Corps in June 2015. As a result of litigation in numerous federal courts, the 2015 rule is currently in effect in 22 states and at least part of New Mexico. The pre-2015 rule is in effect in 27 states and perhaps certain counties in New Mexico because several district courts have preliminarily enjoined the 2015 rule, and those preliminary injunctions remain in effect pending the outcome of litigation on the merits of the 2015 rule. The EPA and the Corps are still in the process of repealing the 2015 WOTUS Rule and developing a replacement rule.The agencies recently announced that they had finalized the repeal rule on September 12, 2019. The repeal will not become effective until 60 days after Federal Register publication, which has not yet occurred. Further, the EPA and the Corps issued a proposed rule in December 2018 offering a replacement definition of WOTUS. The proposal would remove federal protections for streams that flow only after rain or snowfall, as well as wetlands that do not have certain surface water connections to larger waterways. A public hearing on the rule was held in late February 2019. The public comment period on the proposed rule closed on April 15, 2019. Depending on the outcome of litigation and/or rulemaking activity, the scope of CWA authority could increase, decrease, or stay the same relative to the current, pre-2015 definitions of WOTUS, which could impact our operations in some areas.
Effluent Limitations Guidelines for the Steam Electric Power Generating Industry. On September 30, 2015, the EPA published a final rule setting new or additional requirements for various wastewater discharges from steam electric power plants. The rule set zero discharge requirements for some waste streams, as well as new, more stringent limits for arsenic, mercury, selenium and nitrogen applicable to certain other waste streams. On April 12, 2019, the U.S. Court of Appeals for the Fifth Circuit agreed with environmental groups that the portions of the rule regulating legacy wastewater and residual combustion leachate are unlawful. The Court vacated those portions of the rule. Separately, the EPA is reconsidering the portions of the rule regulating wastewater associated with flue gas desulfurization and bottom ash transport. The EPA expects to propose revisions to the 2015 rule in the fall of 2019, and it hopes to finalize any changes in 2020. The effluent limitations guidelines will significantly increase costs for many coal-fired steam electric power plants.
Resource Conservation and Recovery Act (RCRA). RCRA, which was enacted in 1976, affects U.S. coal mining operations by establishing “cradle to grave” requirements for the treatment, storage and disposal of hazardous wastes. Typically, the only hazardous wastes generated at a mine site are those from products used in vehicles and for machinery maintenance. Coal mine wastes, such as overburden and coal cleaning wastes, are not considered hazardous wastes under RCRA.


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Subtitle C of RCRA exempted fossil fuel combustion wastes from hazardous waste regulation until the EPA completed a report to Congress and made a determination on whether the wastes should be regulated as hazardous. On December 19, 2014, the EPA announced the final rule on coal combustion residuals (CCR or coal ash). As finalized, the rule continues the exemption of CCR from regulation as a hazardous waste, but does impose new requirements at existing CCR surface impoundments and landfills that will need to be implemented over a number of different time-frames in the coming months and years, as well as at new surface impoundments and landfills. The U.S. Court of Appeals for the D.C. Circuit held that certain provisions of the EPA’s CCR rule were not sufficiently protective, and it invalidated those provisions. The EPA is also weighing changes to other aspects of its rule. The EPA expects to issue final revisions to the rule at the end of 2019 or in 2020. Generally EPA-imposed requirements will increase the cost of CCR management, but not as much as if the rule had regulated CCR as hazardous.
Wyoming Land Quality Division Self-Bonding Rules. On August 20, 2018, the Wyoming Land Quality Division, through the Land Quality Advisory Board, offered for public comment proposed changes to self-bonding rules related to reclamation obligations. The proposal included requiring that the self-bonding guarantor be the ultimate parent company and that the maximum amount of bonding be limited to 75% of the company’s calculated bond amount. Additionally, the proposal required the self-bonding party to be of investment grade quality using ratings issued by nationally recognized credit rating services, such as the Moody’s Investor Service or Standard and Poor’s Corporation. This requirement would replace the current qualifying tests using a bonding party’s audited financial statements. The proposed rule was approved by the Wyoming Land Quality Advisory Board on September 19, 2018, and the Environmental Quality Counsel on February 19, 2019. It was signed by the governor of Wyoming on May 3, 2019. The Company currently meets all its bonding obligations in Wyoming through the use of commercial surety bonds. Under the new rules, the Company does not qualify for self-bonding based on its current credit rating.
Regulatory Matters - Australia
New South Wales Planning Approvals. In February 2019, a decision of the New South Wales (NSW) Land and Environment Court (LEC) refused planning approval for a non-Peabody coal mining project (Gloucester Resources Limited v Minister for Planning). That approval was refused for other reasons but the judge in that case did discuss ‘Scope 3’ greenhouse gas (GHG) emissions resulting from the consumption of coal to be mined under the proposed project. Such emissions are often raised as a ground of objection to Australian mining projects, including our mining projects. There was a subsequent LEC decision (Australian Coal Alliance Incorporated v Wyong Coal Pty Ltd) in which the approval of a coal mining project was confirmed after such emissions had been considered by the relevant authority. In August 2019, Peabody and Glencore received approval from the NSW Independent Planning Commission (IPC) for the United Wambo project, subject to conditions (Export Conditions) requiring the joint venture to prepare an Export Management Plan setting out protocols for using all reasonable and feasible measures to ensure that any coal extracted from the mine that is to be exported from Australia, is only exported to countries that are parties to the Paris Agreement or countries that the NSW Planning Secretary considers have similar policies for reducing GHG emissions. In September 2019, the IPC declined to approve a non-Peabody ‘greenfield’ coal mining project (Bylong) for various reasons including Scope 3 GHG emissions, but it remains open to the applicant for that project, or a third party, to apply for the IPC’s decision to be judicially reviewed. The IPC subsequently approved another non-Peabody coal mining project (Rix’s Creek) without any Export Conditions. Most recently, the NSW government has introduced into Parliament proposed amendments to legislation and policy that would, if passed, have the effect of invalidating Export Conditions imposed on future NSW planning approvals, as well as no longer requiring consent authorities to consider ‘downstream emissions’ when assessing developments for the purposes of mining, petroleum production or extractive industry. The NSW government has also requested the Productivity Commissioner to conduct a review of the IPC’s role and operations, which is due to be provided to the Minister for Planning and Public Spaces by mid-December 2019.
Queensland Reclamation. The Environmental Protection Act 1994 (EP Act) is administered by the Department of Environment and Science which authorizes environmentally relevant activities such as mining activities relating to a mining lease through an Environmental Authority (EA). Environmental protection and reclamation activities are regulated by conditions in the EA. All mining operations must be carried out in a manner so as to ensure compliance with the conditions in the EA. The mines submit an annual return reporting on their EA compliance.


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In November 2018, the Queensland government passed the Mineral and Energy Resources (Financial Provisioning) Act 2018 providing for a new financial assurance (FA) framework and new progressive rehabilitation requirements. The new FA framework creates a pooled fund covering most mines and most of the total industry liability, plus other options for providing FA if not part of the pooled fund (for example, allowing insurance bonds or cash). The percentage rate of the total rehabilitation cost payable into the pooled fund will take into account the financial strength of the holder of the EA for the mine and the project strength of the mine. The total rehabilitation cost is determined using an updated rehabilitation cost calculator, which no longer provides for discounting. The commencement date for the new FA framework was April 1, 2019 and there is a transitional period during which we will move each of our mines in Queensland into the new FA framework.
The new progressive rehabilitation requirements commenced on November 1, 2019 and require each mine, within a three-year transitional period, to establish a schedule of rehabilitation milestones covering the life of the mine, and any significant changes to the timing of rehabilitation will require regulatory approval. If there is to remain an area within the mine that does not have a post-mining land use (referred to as a non-use management area or NUMA) then each such NUMA will need to pass a public interest evaluation test as part of the approval process. An example of a NUMA is the void that remains after open-cut mining activities have been completed. Under the legislation, each current mine is exempt from the requirement to justify its NUMAs to the extent that its current approvals provide for such areas. We are of the view that there will not be a need to seek any further regulatory approvals for any of the NUMAs at any of our Queensland mines.
Federal Reclamation. In February 2017, the Australian Senate established a Committee of Inquiry into the rehabilitation of mining and resources projects as it relates to Commonwealth responsibilities, for example, under the Environment Protection and Biodiversity Conservation Act 1999. The Committee released their report in March 2019. The Committee was unable to reach unanimous agreement on a set of recommendations. It is unclear the extent to which the report will impact policy reform at a federal government level.
Sydney Water Catchment Areas. In November 2017, the New South Wales government established an independent expert panel (Panel) to advise the Department of Planning, Industry and Environment (DPIE) on the impact of underground mining activities in Sydney’s water catchment areas, including at our Metropolitan Mine. The Panel issued an initial report to DPIE in November 2018, which was publicly released in December 2018 and only concerned mining activities at two mines, our Metropolitan Mine and a competitor’s Dendrobium Mine. After consultation with stakeholders, including Peabody, a final report was released in October 2019. The final report updates and finalizes the initial report and also makes findings and recommendations concerning mining activities and effects across the catchment as a whole.
The Panel’s reports acknowledge the major effort at the Metropolitan and Dendrobium Mines over the last decade to employ best practice modeling and assessment methods undertaken by suitable specialists, with expert peer review while recommending continued rigorous monitoring and impact assessment in order to build on the knowledge base regarding mining-induced subsidence and its impacts on groundwater and surface water. The reports endorse the government taking an incremental approach to mining approvals that provides for considering existing and emerging information and knowledge gaps. The Panel concluded in the final report that the average daily water inflow over the last three years at the Metropolitan Mine is generally less than 0.2 megaliters per day and shows no evidence of connected fracture regime to surface or correlation with rainfall. It also concluded that the potential for water to be diverted out of Woronora Reservoir and into other catchments through valley closure shear planes and geological structures will require careful assessment in the future because it is planned that most of the remaining longwall panels in the approved mining area will pass beneath the reservoir. A range of matters remain to be considered by the Panel, including the cumulative impacts of flow losses and the relative significance of these for water supplies as well as the practicalities associated with establishing a robust regional water balance model.
The DPIE will now consider the recommendations in the Panel’s final report and has said that in the meantime no new development applications for mining in the catchment will be determined. We do not currently have any such applications awaiting determination. The latest extraction plans for the Metropolitan Mine are progressing on an incremental basis and we continue to conduct robust monitoring, data collection and reporting and have been actively consulting with the government on Metropolitan’s approval processes and mine design to ensure that operational impacts are appropriately managed and minimized as far as possible.
National Energy Policy. Following the outcome of the federal election in May 2019, the federal government confirmed it will not revive the former National Energy Guarantee policy. Instead, the government will pursue a new energy and climate change policy, which includes a $2 billion Australian dollars investment in projects to bring down Australia's greenhouse gas emissions. The Climate Solutions Fund is an extension of the former Emissions Reduction Fund. The government has confirmed that it remains committed to meeting Australia’s Paris Agreement targets but that the focus of energy policy will be on driving down electricity prices.


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Liquidity and Capital Resources
Overview
Our primary source of cash is proceeds from the sale of our coal production to customers. We have also generated cash from the sale of non-strategic assets, including coal reserves and surface lands, borrowings under our credit facilities and, from time to time, the issuance of securities. Our primary uses of cash include the cash costs of coal production, capital expenditures, coal reserve lease and royalty payments, debt service costs, capital and operating lease payments, postretirement plans, take-or-pay obligations, post-mining reclamation obligations, and selling and administrative expenses. We have also used cash for dividends and share repurchases. We believe that our capital structure allows us to satisfy our working capital requirements and fund capital expenditures and debt-service obligations with cash generated from operations and cash on hand.
Any future determinations to return capital to stockholders, such as dividends or share repurchases will be at the discretion of our Board of Directors and will depend on a variety of factors, including the restrictions set forth under our debt agreements, our net income or other sources of cash, liquidity position and potential alternative uses of cash, such as internal development projects or acquisitions, as well as economic conditions and expected future financial results. Our ability to declare dividends or repurchase shares in the future will depend on our future financial performance, which in turn depends on the successful implementation of our strategy and on financial, competitive, regulatory, technical and other factors, general economic conditions, demand for and selling prices of coal and other factors specific to our industry, many of which are beyond our control.
Liquidity
As of September 30, 2019, our available liquidity was $1,349.5 million which was comprised of cash and cash equivalents and availability under our revolver and accounts receivable securitization program as described below. As of September 30, 2019, our cash balances totaled $759.1 million, including approximately $652 million held by U.S. subsidiaries, $84 million held by Australian subsidiaries and the remaining balance held by other foreign subsidiaries in accounts predominantly domiciled in the U.S. A significant majority of the cash held by our foreign subsidiaries is denominated in U.S. dollars. This cash is generally used to support non-U.S. liquidity needs, including capital and operating expenditures in Australia. During the nine months ended September 30, 2019, we repatriated to the U.S. approximately $420 million previously held by foreign subsidiaries. If we repatriate foreign-held cash in the future, we do not expect restrictions or potential taxes to have a material effect on our overall liquidity.
During the nine months ended September 30, 2019, we paid dividends of $243.9 million, including $200 million for a supplemental dividend, and made stock repurchases totaling $300.2 million.
Our ability to maintain adequate liquidity depends on the successful operation of our business and appropriate management of operating expenses and capital spending. Our anticipated liquidity needs are highly sensitive to changes in each of these and other factors.
Debt Financing
As described in Note 13. “Long-term Debt” of the accompanying unaudited condensed consolidated financial statements, during 2017, we entered into an indenture related to the issuance of $500.0 million of 6.000% senior secured notes due March 2022 and $500.0 million of 6.375% senior secured notes due March 2025. We make semi-annual interest payments on the senior notes each March 31 and September 30 until maturity. Also during 2017, we entered into a credit agreement and related term loan under which we originally borrowed $950.0 million and have repaid $556.0 million through September 30, 2019. The term loan requires quarterly principal payments of $1.0 million and periodic interest payments, currently at LIBOR plus 2.75%, through December 2024 with the remaining balance due in March 2025.
We also entered into a revolving credit facility allowable under our credit agreement during 2017 for an aggregate commitment of $350.0 million for general corporate purposes. To date, we have only utilized this revolving credit facility for letters of credit which incur combined fees of 3.375%, while unused capacity bears a commitment fee of 0.5%. As of September 30, 2019, such letters of credit amounted to $66.4 million and were primarily in support of our reclamation obligations. In September 2019, we entered into an amendment to the credit agreement which increased the aggregate commitment amount under the revolver to $565.0 million and, beginning in 2020, makes applicable interest rates and fees dependent upon our periodically-determined first lien leverage ratio, as defined in the credit agreement.
Our debt agreements impose various restrictions and limits on certain categories of payments that we may make, such as those for dividends, investments, and stock repurchases. We are also subject to customary affirmative and negative covenants. At September 30, 2019 and subsequently, we were in compliance with all such restrictions and covenants.


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As described in the “Overview” section contained within this Item 2, the September 2019 amendment to our credit facility removed that agreement’s restrictions pertaining to the formation of the PRB Colorado joint venture with Arch. We are currently considering alternatives for addressing similar restrictions contained within the indenture underlying our senior secured notes. Our ability to accomplish this objective is subject to market conditions and other factors, including financing options that may be available to us from time to time and conditions in the credit and debt capital markets generally.
The Company intends to move toward a gross debt target of $1.2 billion over time, to better accommodate future investment opportunities, including the PRB Colorado joint venture with Arch, and lower fixed charges.
Accounts Receivable Securitization Program
As described in Note 18. “Financial Instruments and Other Guarantees” of the accompanying unaudited condensed consolidated financial statements, we entered into an amended accounts receivable securitization program during 2017 which currently expires in 2022. The program provides for up to $250.0 million in funding, limited to the availability of eligible receivables, accounted for as a secured borrowing. Funding capacity under the program may also be provided for letters of credit in support of other obligations. At September 30, 2019, we had no outstanding borrowings and $132.7 million of letters of credit provided under the program. The letters of credit are primarily in support of portions of our obligations for reclamation, workers’ compensation and postretirement benefits. There was no cash collateral requirement under the program at September 30, 2019.
Capital Requirements
As a result of the deferral of certain capital project spending to subsequent periods, we revised our expected 2019 capital expenditures to a range of $300 million to $325 million during the third quarter of 2019, as compared to a range of $350 million to $375 million as disclosed in Item 2. “Management’s Discussion and Analysis of Financial Condition and Results of Operations” of our Quarterly Report on Form 10-Q for the quarter ended March 31, 2019. There were no other material changes to our capital requirements.
Contractual Obligations
There were no material changes to our contractual obligations from the information previously provided in Item 7. “Management’s Discussion and Analysis of Financial Condition and Results of Operations” of our Annual Report on Form 10-K for the year ended December 31, 2018.
Historical Cash Flows and Free Cash Flow
The following table summarizes our cash flows for the nine months ended September 30, 2019 and 2018, as reported in the accompanying unaudited condensed consolidated financial statements. Free Cash Flow is a financial measure not recognized in accordance with U.S. GAAP. Refer to the “Reconciliation of Non-GAAP Financial Measures” section above for definitions and reconciliations to the most comparable measures under U.S. GAAP.
 
Nine Months Ended September 30,
 
2019
 
2018
 
(Dollars in millions)
Net cash provided by operating activities
$
552.6

 
$
1,260.8

Net cash used in investing activities
(147.6
)
 
(65.5
)
Net cash used in financing activities
(610.0
)
 
(863.1
)
Net change in cash, cash equivalents and restricted cash
(205.0
)
 
332.2

Cash, cash equivalents and restricted cash at beginning of period
1,017.4

 
1,070.2

Cash, cash equivalents and restricted cash at end of period
$
812.4

 
$
1,402.4

 
 
 
 
Net cash provided by operating activities
$
552.6

 
$
1,260.8

Net cash used in investing activities
(147.6
)
 
(65.5
)
Add back: Amount attributable to acquisition of Shoal Creek Mine
2.4

 

Free Cash Flow
$
407.4

 
$
1,195.3



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Operating Activities. The decrease in net cash provided by operating activities for the nine months ended September 30, 2019 compared to the same period in the prior year was driven by the following:
A year-over-year decrease in cash from our mining operations;
A substantial release of collateral obligations during the prior year period upon establishing our new surety bonding program in Australia ($323.1 million);
An unfavorable change in net cash flows associated with our working capital ($155.1 million); partially offset by
The receipt of insurance proceeds attributable to North Goonyella leased equipment, cost recovery and business interruption ($101.8 million)
Investing Activities. The increase in net cash used in investing activities for the nine months ended September 30, 2019 compared to the same period in the prior year was driven by the following:
Lower cash receipts from Middlemount Coal Pty Ltd ($66.4 million); and
Lower proceeds from disposals of assets, net of receivables ($41.4 million); partially offset by
The receipt of insurance proceeds attributable to North Goonyella Company-owned equipment losses ($23.2 million)
Financing Activities. The decrease in net cash used in financing activities for the nine months ended September 30, 2019 compared to the same period in the prior year was driven by the following:
Lower common stock repurchases ($399.4 million); and
Lower debt repayments ($49.1 million) due to a prepayment made in connection with the 2018 amendment of our Senior Secured Term Loan; partially offset by
Higher dividends paid ($199.3 million), primarily due to a supplemental dividend of $1.85 per share of common stock
Off-Balance Sheet Arrangements
In the normal course of business, we are a party to various guarantees and financial instruments that carry off-balance-sheet risk and are not reflected in the accompanying condensed consolidated balance sheets. At September 30, 2019, such instruments included $1,599.3 million of surety bonds and $200.5 million of letters of credit. Such financial instruments provide support for our reclamation bonding requirements, lease obligations, insurance policies and various other performance guarantees. We periodically evaluate the instruments for on-balance-sheet treatment based on the amount of exposure under the instrument and the likelihood of required performance. We do not expect any material losses to result from these guarantees or off-balance-sheet instruments in excess of liabilities provided for in our condensed consolidated balance sheets.
We could experience a decline in our liquidity as financial assurances associated with reclamation bonding requirements, surety bonds or other obligations are required to be collateralized by cash or letters of credit.
As described in Note 18. “Financial Instruments and Other Guarantees” in the accompanying unaudited condensed consolidated financial statements, we are required to provide various forms of financial assurance in support of our mining reclamation obligations in the jurisdictions in which we operate. Such requirements are typically established by statute or under mining permits. Historically, such assurances have taken the form of third-party instruments such as surety bonds, bank guarantees and letters of credit, as well as self-bonding arrangements in the U.S. In connection with our emergence from the Chapter 11 reorganization, we shifted away from extensive self-bonding in the U.S. in favor of increased usage of surety bonds and similar third-party instruments. This divergence in practice may impact our liquidity in the future due to increased collateral requirements and surety and related fees.
At September 30, 2019, we had total asset retirement obligations of $760.0 million which were backed by a combination of surety bonds and letters of credit.
Bonding requirement amounts may differ significantly from the related mining reclamation obligation because such requirements are calculated under the assumption that reclamation begins currently, whereas our accounting liabilities are discounted from the end of a mine’s economic life (when final reclamation work would begin) to the balance sheet date.
Guarantees and Other Financial Instruments with Off-Balance Sheet Risk. See Note 18. “Financial Instruments and Other Guarantees” in our unaudited condensed consolidated financial statements for a discussion of our accounts receivable securitization program and guarantees and other financial instruments with off-balance sheet risk.


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Critical Accounting Policies and Estimates
Our discussion and analysis of our financial condition, results of operations, liquidity and capital resources is based upon our financial statements, which have been prepared in accordance with U.S. GAAP. We are also required under U.S. GAAP to make estimates and judgments that affect the reported amounts of assets, liabilities, revenues and expenses and related disclosure of contingent assets and liabilities. On an ongoing basis, we evaluate our estimates. We base our estimates on historical experience and on various other assumptions that we believe are reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates.
Our critical accounting policies are discussed in Item 7. “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in our Annual Report on Form 10-K for the year ended December 31, 2018. Our critical accounting policies remain unchanged at September 30, 2019.
Newly Adopted Accounting Standards and Accounting Standards Not Yet Implemented
See Note 2. “Newly Adopted Accounting Standards and Accounting Standards Not Yet Implemented” to our unaudited condensed consolidated financial statements for a discussion of newly adopted accounting standards and accounting standards not yet implemented.
Item 3. Quantitative and Qualitative Disclosures About Market Risk.
Foreign Currency Risk
We have historically utilized currency forwards and options to hedge currency risk associated with anticipated Australian dollar expenditures. The accounting for these derivatives is discussed in Note 8. “Derivatives and Fair Value Measurements” to the accompanying unaudited condensed consolidated financial statements. As of September 30, 2019, the Company had currency options outstanding with an aggregate notional amount of $925.0 million Australian dollars to hedge currency risk associated with anticipated Australian dollar expenditures during the remainder of 2019 and over the first six months of 2020. Assuming we had no foreign currency hedging instruments in place, our exposure in operating costs and expenses due to a $0.05 change in the Australian dollar/U.S. dollar exchange rate is approximately $75 to $85 million for the next twelve months. Based upon the Australian dollar/U.S. dollar exchange rate at September 30, 2019, the currency option contracts outstanding at that date would not materially limit our net exposure to a $0.05 unfavorable change in the exchange rate for the next twelve months.
Other Non-Coal Trading Activities — Diesel Fuel Price Risk
Diesel Fuel Hedges. Previously, we managed price risk of the diesel fuel used in our mining activities through the use of derivatives, primarily swaps. As of September 30, 2019, we did not have any diesel fuel derivative instruments in place. We also manage the price risk of diesel fuel through the use of cost pass-through contacts with certain customers.
We expect to consume 110 to 120 million gallons of diesel fuel during the next twelve months. A $10 per barrel change in the price of crude oil (the primary component of a refined diesel fuel product) would increase or decrease our annual diesel fuel costs by approximately $28 million based on our expected usage.
Item 4. Controls and Procedures.
Our disclosure controls and procedures are designed to, among other things, provide reasonable assurance that material information, both financial and non-financial, and other information required under the securities laws to be disclosed is accumulated and communicated to senior management, including our principal executive and financial officers, on a timely basis. Our Chief Executive Officer and Chief Financial Officer have evaluated our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934) as of September 30, 2019, and concluded that such controls and procedures are effective to provide reasonable assurance that the desired control objectives were achieved.
We acquired the Shoal Creek Mine on December 3, 2018. For the three and nine months ended September 30, 2019, the Shoal Creek Mine accounted for $56.2 million and $286.9 million, respectively, of our revenues and constituted $373.9 million of total assets as of September 30, 2019. We completed our review of the internal control structure of the Shoal Creek Mine and made appropriate changes to incorporate our controls and procedures into the acquired operations. The Shoal Creek Mine will be included in our assessment of the effectiveness of our internal control over financial reporting as of December 31, 2019.


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Except as described in the preceding paragraph, there have been no changes to our internal control over financial reporting during the most recent fiscal quarter that materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
PART II - OTHER INFORMATION
Item 1. Legal Proceedings.
We are subject to various legal and regulatory proceedings. For a description of our significant legal proceedings refer to Note 5. “Discontinued Operations” and Note 19. “Commitments and Contingencies” to the unaudited condensed consolidated financial statements included in Part I, Item 1. “Financial Statements” of this Quarterly Report, which information is incorporated by reference herein.
Item 1A. Risk Factors.
In the third quarter of 2019, there were no significant changes to our risk factors from those disclosed in Part I, Item 1A. “Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2018 filed with the SEC on February 27, 2019 and in our Quarterly Report on Form 10-Q for the period ended June 30, 2019 filed with the SEC on August 8, 2019. The Risk Factors described in such Form 10-Q include additional risk factors relating to our proposed PRB Colorado joint venture with Arch. In addition to the other information set forth in this Quarterly Report, including the information presented in Item 2. “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” you should carefully consider those risk factors disclosed in the aforementioned filings, which could materially affect the Company’s results of operations, financial condition and liquidity.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds.
Share Repurchase Program
Our Board of Directors has authorized a share repurchase program, as amended, to allow repurchases of up to $1.5 billion of the outstanding shares of our common stock and/or preferred stock (Repurchase Program). Repurchases may be made from time to time at the Company’s discretion. The specific timing, price and size of purchases will depend on the share price, general market and economic conditions and other considerations, including compliance with various debt agreements as they may be amended from time to time. The Repurchase Program does not have an expiration date and may be discontinued at any time. Through September 30, 2019, we have repurchased 39.5 million shares of our common stock for $1,310.6 million, which included commissions paid of $0.8 million, leaving $190.2 million available for share repurchase under the Repurchase Program. The purchases were made in compliance with our debt instruments. Limitations on share repurchases imposed by our debt instruments are discussed in Part I, Item 2. “Management’s Discussion and Analysis of Financial Condition and Results of Operations.”
Share Relinquishments
We routinely allow employees to relinquish common stock to pay estimated taxes upon the vesting of restricted stock units and the payout of performance units that are settled in common stock under our equity incentive plans. The value of common stock tendered by employees is determined based on the closing price of our common stock on the dates of the respective relinquishments.


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Purchases of Equity Securities
The following table summarizes all share purchases for the three months ended September 30, 2019:
Period
 
Total
Number of
Shares
Purchased (1)
 
Average
Price Paid per
Share
 
Total Number of
Shares Purchased
as Part of Publicly
Announced
Program
 
Maximum Dollar
Value that May
Yet Be Used to
Repurchase Shares
Under the Publicly
Announced Program
(In millions)
July 1 through July 31, 2019
 
2,307,989

 
$
22.99

 
2,307,225

 
$
281.2

August 1 through August 31, 2019
 
3,581,000

 
18.50

 
3,581,000

 
215.0

September 1 through September 30, 2019
 
1,463,700

 
16.94

 
1,463,700

 
190.2

Total
 
7,352,689

 
19.60

 
7,351,925

 
 
(1) 
Includes shares withheld to cover the withholding taxes upon the vesting of equity awards, which are not part of the Repurchase Program.
Dividends
During the three and nine months ended September 30, 2019, the Company declared dividends per share of $0.145 and $2.265 per share, respectively. On October 16, 2019, our Board of Directors declared a dividend of $0.145 per share of Common Stock to be paid on November 29, 2019 to shareholders of record as of October 30, 2019. The declaration and payment of dividends and the amount of dividends will depend on our results of operations, financial condition, cash requirements, future prospects, any limitations imposed by our debt covenants and other factors that our Board of Directors may deem relevant to such evaluations. Payment of dividends is subject to certain limitations, as set forth in our debt agreements. Such limitations on dividends are discussed in Part I, Item 2. “Management’s Discussion and Analysis of Financial Condition and Results of Operations.”
Item 4. Mine Safety Disclosures.
Our “Safety a Way of Life Management System” has been designed to set clear and consistent expectations for safety and health across our business. It aligns to the National Mining Association’s CORESafety® framework and encompasses three fundamental areas: leadership and organization, safety and health risk management and assurance. We also partner with other companies and certain governmental agencies to pursue new technologies that have the potential to improve our safety performance and provide better safety protection for employees.
We continually monitor our safety performance and regulatory compliance. The information concerning mine safety violations or other regulatory matters required by SEC regulations is included in Exhibit 95 to this Quarterly Report on Form 10-Q.
Item 6. Exhibits.
See Exhibit Index at page 67 of this report.


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EXHIBIT INDEX
The exhibits below are numbered in accordance with the Exhibit Table of Item 601 of Regulation S-K.
Exhibit No.
 
Description of Exhibit
 
 
 
10.1†
 
 
 
 
10.2†
 
 
 
 
10.75†
 
 
 
 
10.76†
 
 
 
 
31.1†
 
 
 
 
31.2†
 
 
 
 
32.1†
 
 
 
 
32.2†
 
 
 
 
95†
 
 
 
 
101.INS
 
XBRL Instance Document - the instance document does not appear in the interactive data file because XBRL tags are embedded within the inline XBRL document
 
 
 
101.SCH
 
Inline XBRL Taxonomy Extension Schema Document
 
 
 
101.CAL
 
Inline XBRL Taxonomy Extension Calculation Linkbase Document
 
 
 
101.DEF
 
Inline XBRL Taxonomy Extension Definition Linkbase Document
 
 
 
101.LAB
 
Inline XBRL Taxonomy Extension Label Linkbase Document
 
 
 
101.PRE
 
Inline XBRL Taxonomy Extension Presentation Linkbase Document
 
 
 
104
 
The cover page from Peabody Energy Corp’s Quarterly report on Form 10-Q for the quarter ended September 30, 2019, formatted in inline XBRL contained in Exhibit 101
 
 
 
 
Filed herewith.


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SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
 
 
 
PEABODY ENERGY CORPORATION
Date:
November 5, 2019
By:  
/s/ AMY B. SCHWETZ
 
 
 
 
Amy B. Schwetz
 
 
 
 
Executive Vice President and Chief Financial Officer
(On behalf of the registrant and as Principal Financial Officer) 




68



Exhibit 10.1
AMENDMENT NO. 6 TO CREDIT AGREEMENT
AMENDMENT NO. 6 TO CREDIT AGREEMENT (this “Amendment No. 6”), dated as of September 17, 2019, by and among PEABODY ENERGY CORPORATION, a Delaware corporation (the “Borrower”), the other Reaffirming Parties (as defined below) party hereto, the 2019 Incremental Revolving Lenders (as defined below), GOLDMAN SACHS BANK USA, as administrative agent (in such capacity, including any permitted successor thereto, the “Existing Administrative Agent”), and JPMORGAN CHASE BANK, N.A., as successor administrative agent (in such capacity, the “Successor Administrative Agent” and together with the Existing Administrative Agent, the “Administrative Agents”).
PRELIMINARY STATEMENTS
WHEREAS, the Borrower has entered into that certain Credit Agreement, dated as of April 3, 2017, among the Borrower, the lenders party thereto from time to time (collectively, the “Lenders” and each individually, a “Lender”) the Existing Administrative Agent (as amended by that certain Amendment No. 1 to Credit Agreement, dated as of September 18, 2017, that certain Amendment No. 2 to Credit Agreement, dated as of November 17, 2017, that certain Amendment No. 3 to Credit Agreement, dated as of December 8, 2017, that certain Amendment No. 4 to Credit Agreement, dated as of April 11, 2018, that certain Amendment No. 5 to Credit Agreement, dated as of June 27, 2018, and that certain Technical Amendment to Credit Agreement, dated as of July 19, 2018, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to, but not including, the date hereof, the “Credit Agreement”, and as amended by this Amendment No. 6, the “Amended Credit Agreement”);
WHEREAS, pursuant to Section 2.15(a) of the Credit Agreement, the Borrower has requested to increase the principal amount of the 2017 Incremental Revolving Facility by an aggregate principal amount of $195,000,000 (the commitments provided hereunder, the “2019 Incremental Revolving Commitments” and the loans made pursuant thereto, the “2019 Incremental Revolving Loans”) pursuant to clause (b)(i) of the definition of Incremental Debt Cap, to be provided by the 2019 Incremental Revolving Lenders party hereto and effective on the Amendment No. 6 Effective Date (as defined below) pursuant to the terms hereof and in the Amended Credit Agreement;
WHEREAS, as contemplated by Section 2.15 of the Credit Agreement, (x) subject to the satisfaction of the conditions precedent set forth in Section 6 hereof, the Existing Administrative Agent, the 2019 Incremental Revolving Lenders party hereto and the Borrower have agreed to amend certain terms of the Credit Agreement as provided herein in order to give effect to the 2019 Incremental Revolving Commitments provided hereunder and (y) this Amendment No. 6 constitutes an “Incremental Amendment” under the Credit Agreement;
WHEREAS, each 2019 Incremental Revolving Lender party hereto is prepared to provide the 2019 Incremental Revolving Commitments in an amount equal to its 2019 Incremental Revolving Commitment set forth on Schedule 1 hereto, subject to the terms and conditions set forth herein and in the Amended Credit Agreement;

1



WHEREAS, each Loan Party party hereto and Gibraltar Holdings (collectively, the “Reaffirming Parties”, and each, a “Reaffirming Party”) expects to realize substantial direct and indirect benefits as a result of this Amendment No. 6 becoming effective and the consummation of the transactions contemplated hereby and agrees to reaffirm its obligations under the Credit Agreement, the Security Documents, and the other Loan Documents to which it is a party;
WHEREAS, pursuant to that certain Notice of Agent Resignation, Successor Agent Appointment and Agency Transfer Agreement to be dated as of the date hereof and effective as of the Effective Time (as defined therein) (which shall be substantially in the form attached hereto as Annex A, the “Resignation and Appointment Agreement”), Goldman Sachs Bank USA, as Existing Administrative Agent, desires to resign as administrative agent effective as of the Effective Time, and the 2019 Incremental Revolving Lenders (which collectively shall constitute the Required Lenders as of the Amendment No. 6 Effective Date) and the Borrower desire to appoint JPMorgan Chase Bank, N.A., as Successor Administrative Agent, and JPMorgan Chase Bank, N.A. desires to serve as Successor Administrative Agent from and after the Effective Time; and
WHEREAS, the Borrower, the 2019 Incremental Revolving Lenders and the Existing Administrative Agent have agreed to amend the Credit Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is acknowledged by each party hereto, it is agreed:
SECTION 1.CERTAIN DEFINITIONS. Capitalized terms used (including in the preamble and recitals hereto) but not defined herein shall have the meanings assigned to such terms in the Amended Credit Agreement. As used in this Amendment No. 6:“2019 Incremental Revolving Commitments” is defined in the second recital hereto.
2019 Incremental Revolving Lenders” is defined in Section 2 hereof.
2019 Incremental Revolving Loans” is defined in the second recital hereto.
Administrative Agents” is defined in the preamble hereto.
Amended Credit Agreement” is defined in the first recital hereto.
Amendment No. 6” is defined in the preamble hereto.
Amendment No. 6 Effective Date” means the date on which the conditions set forth in Section 6 of this Amendment No. 6 are satisfied or waived.
Borrower” is defined in the preamble hereto.
Borrower Notice” is defined in Section 6(k) hereof.
Credit Agreement” is defined in the first recital hereto.


2



Existing Administrative Agent” is defined in the preamble hereto.
Lenders” is defined in the first recital hereto.
NFIP” is defined in Section 6(k) hereof.
Reaffirming Parties” is defined in the fifth recital hereto.
Successor Administrative Agent” is defined in the preamble hereto.
SECTION 2.    2019 INCREMENTAL REVOLVING COMMITMENTS. Pursuant to Section 2.15 of the Credit Agreement, and subject solely to the satisfaction of the conditions precedent set forth in Section 6 hereof, on and as of the Amendment No. 6 Effective Date:
(a)
Each lender set forth on Schedule 1 to this Amendment No. 6 (each, a “2019 Incremental Revolving Lender”) hereby severally and not jointly agrees to commit to provide its respective 2019 Incremental Revolving Commitment set forth on Schedule 1. The 2019 Incremental Revolving Commitments shall be an increase to the 2017 Incremental Revolving Facility.
(b)
[Reserved.]
(c)
Each 2019 Incremental Revolving Lender hereby (i) represents and warrants that (A) it has full power and authority, and has taken all action necessary, to execute and deliver this Amendment No. 6 and to consummate the transactions contemplated hereby and in the Amended Credit Agreement, (B) it is an existing Lender under the Credit Agreement, (C) from and after the Amendment No. 6 Effective Date, it shall be bound by the provisions of the Amended Credit Agreement, (D) it is sophisticated with respect to decisions to acquire assets of the type represented by the 2019 Incremental Revolving Commitments and the 2019 Incremental Revolving Loans and either it, or the Person exercising discretion in making its decision to commit to provide its 2019 Incremental Revolving Commitment, is experienced in committing to commitments and loans of such type, (E) it has received a copy of the Credit Agreement, this Amendment No. 6 and the other Loan Documents, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 6.01 of the Amended Credit Agreement, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Amendment No. 6 and to commit to provide its respective 2019 Incremental Revolving Commitment, (F) it has, independently and without reliance upon the Existing Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Amendment No. 6 and to commit to provide its respective 2019 Incremental Revolving Commitment, and (G) it has provided Borrower and the Existing Administrative Agent any documentation required to be delivered by it pursuant to the terms of the Amended Credit Agreement (including Section 3.01(e) of the Amended Credit Agreement), duly completed and executed by such 2019 Incremental Revolving Lender; (ii) agrees that

3



(A) it will, independently and without reliance on either the Existing Administrative Agent or any other 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 the Loan Documents, and (B) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender; and (iii) appoints and authorizes the Existing Administrative Agent and the Collateral Trustee to take such action as agent on its behalf and to exercise such powers under the Amended Credit Agreement and the other Loan Documents as are delegated to the Existing Administrative Agent and Collateral Trustee, as the case may be, by the terms thereof, together with such powers as are reasonably incidental thereto.
(d)
The terms and provisions of the 2019 Incremental Revolving Commitments and the 2019 Incremental Revolving Loans shall be identical to the terms and provisions of the Incremental Revolving Commitments and the Incremental Revolving Loans existing under the Credit Agreement.
(e)
On the Amendment No. 6 Effective Date, each of the existing Incremental Revolving Lenders under the Credit Agreement is hereby deemed to assign to each of the 2019 Incremental Revolving Lenders, and each of the 2019 Incremental Revolving Lenders is hereby deemed to purchase from each of the existing Incremental Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Incremental Revolving Loans and participations in Letters of Credit outstanding on the Amendment No. 6 Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Incremental Revolving Loans and participations in Letters of Credit will be held by existing Incremental Revolving Lenders and 2019 Incremental Revolving Lenders ratably in accordance with their Incremental Revolving Commitments after giving effect to the addition of the 2019 Incremental Revolving Commitments to the existing Incremental Revolving Commitments.
(f)
Each 2019 Incremental Revolving Lender, the Administrative Agents and the Reaffirming Parties party hereto agree that this Amendment No. 6 shall constitute an “Incremental Facility Request” and an “Incremental Amendment” pursuant to and in accordance with Section 2.15 of the Credit Agreement and a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents. The Incremental Facility Effective Date shall be the Amendment No. 6 Effective Date.
SECTION 3.    AMENDMENTS TO LOAN DOCUMENTS.
(a)
The fourth paragraph appearing under “Preliminary Statements” of the Credit Agreement is hereby amended and restated to read in its entirety as follows:
“The Borrower has requested that, on the Second Amendment Effective Date, the Third Amendment Effective Date and the Sixth Amendment Effective Date, the Incremental Revolving Lenders party to the Second Amendment, the Third Amendment and the Sixth Amendment, as applicable, make Incremental Revolving Commitments to the Borrower

4



for general working capital purposes (including the issuance of Letters of Credit and Bank Guarantees), and such Incremental Revolving Lenders have agreed to provide such Incremental Revolving Commitments on the terms and subject to the conditions set forth herein and in the Second Amendment, the Third Amendment or the Sixth Amendment, as applicable.”
(b)
Section 1.01 of the Credit Agreement is hereby amended by amending and restating the following defined terms to read in their entirety as follows:
2017 Incremental Revolving Facility” has the meaning specified in the Second Amendment, as increased pursuant to the Third Amendment and the Sixth Amendment.
Applicable Percentage” means (a) in respect of the Term Loan Facility, with respect to any Term Lender at any time, the percentage (carried out to the tenth decimal place) of the Term Loan Facility represented by (i) until the Closing Date, such Term Lender’s respective Term Loan Commitments and (ii) thereafter, the aggregate principal amount of such Term Lender’s Term Loans then outstanding, and (b) in respect of the Incremental Revolving Facilities, with respect to any Incremental Revolving Lender at any time, the percentage (carried out to the ninth decimal place) of the then available Incremental Revolving Facilities represented by such Incremental Revolving Lender’s Incremental Revolving Commitment at such time. If the commitment of each Incremental Revolving Lender to make Incremental Revolving Loans and the obligation of the L/C Issuers to make L/C Credit Extensions have been terminated pursuant to Section 8.02, or if the Incremental Revolving Commitments have expired, then the Applicable Percentage of each Incremental Revolving Lender in respect of the Incremental Revolving Facilities shall be determined based on the Applicable Percentage of such Incremental Revolving Lender in respect of the Incremental Revolving Facilities most recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each Term Lender in respect of the Term Loan Facility as of the Closing Date is set forth opposite the name of such Term Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Term Lender becomes a party hereto, as applicable. The Applicable Percentage of each Incremental Revolving Lender in respect of the Incremental Revolving Facility as of the Sixth Amendment Effective Date is set forth opposite the name of such Incremental Revolving Lender on Schedule 2 to the Sixth Amendment or in the Assignment and Assumption pursuant to which such Incremental Revolving Lender becomes a party hereto, as applicable.
Incremental Revolving Commitment” means, as to each Incremental Revolving Lender, its obligation to (a) make Incremental Revolving Loans to the Borrower pursuant to Section 2.01(b) and (b) purchase participations in L/C Obligations, in an aggregate principal amount at any one time outstanding under such clauses (a) and (b) not to exceed the amount set forth (x) in the case of the 2017 Incremental Revolving Facility, opposite such Lender’s name on Schedule 2 to the Sixth Amendment under the caption “Incremental Revolving Commitments”, (y) in the case of any other Incremental Revolving Facility, in the applicable Incremental Amendment or (z) if applicable, in any case, in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable as such amount may be adjusted from time to time in accordance

5



with this Agreement. The aggregate amount of the Incremental Revolving Commitments as of the Sixth Amendment Effective Date is $565,000,000.
Loan Documents” means this Agreement, the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, the Sixth Amendment, the Collateral Trust Agreement, the CTA Amendment (as defined in the Fourth Amendment), Amendment No. 2 to Collateral Trust Agreement, dated as of July 19, 2018, each Note, the Issuer Documents, the Fee Letters, the Guaranty, each Security Document and any ABL Intercreditor Agreement.
(c)
Section 1.01 of the Credit Agreement is hereby amended by adding the following defined terms in appropriate alphabetical order:
Sixth Amendment” means that certain Amendment No. 6 to Credit Agreement, dated as of September 17, 2019, by and among the Borrower, the other Reaffirming Parties (as defined therein), the Incremental Revolving Lenders party thereto and the Administrative Agents (as defined therein).
Sixth Amendment Effective Date” means the Amendment No. 6 Effective Date (as defined in the Sixth Amendment).
SECTION 4.    REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT. On and after the Amendment No. 6 Effective Date, (i) each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof” or text of like import referring to the Credit Agreement shall mean and be a reference to the Amended Credit Agreement, (ii) the 2019 Incremental Revolving Commitments shall constitute “Incremental Revolving Commitments” under the 2017 Incremental Revolving Facility and “Commitments”, in each case, under and as defined in the Amended Credit Agreement, (iii) the 2019 Incremental Revolving Loans shall constitute “Incremental Revolving Loans” under the 2017 Incremental Revolving Facility and “Loans”, in each case, under and as defined in the Amended Credit Agreement, and (iv) the 2019 Incremental Revolving Lenders shall each constitute an “Incremental Revolving Lender” and a “Lender”, in each case, under and as defined in the Amended Credit Agreement. This Amendment No. 6 shall for all purposes constitute a “Loan Document” under and as defined in the Amended Credit Agreement and the other Loan Documents.
SECTION 5.    REPRESENTATIONS & WARRANTIES. In order to induce the 2019 Incremental Revolving Lenders and the Existing Administrative Agent to enter into this Amendment No. 6 and to induce the 2019 Incremental Revolving Lenders to provide the 2019 Incremental Revolving Commitments hereunder, each Loan Party hereby represents and warrants to the 2019 Incremental Revolving Lenders and the Existing Administrative Agent on and as of the Amendment No. 6 Effective Date that:
(a)
each of the representations and warranties made by the Borrower contained in Article V of the Credit Agreement and by each Loan Party contained in each other Loan Document shall be true and correct in all material respects on and as of the Amendment No. 6 Effective Date with the same effect as though made on and as of

6



such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, and except that for purposes of this Section 5, the representations and warranties contained in subsection (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clause (b) of Section 6.01 of the Credit Agreement; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality or by a reference to a Material Adverse Effect in the text thereof; provided further that all references in the representations set forth in Sections 5.01, 5.02, 5.03, 5.04, 5.06, 5.07 and 5.15 of the Credit Agreement to “Loan Documents” shall be deemed to be references to this Amendment No. 6 and the other Loan Documents (including the Credit Agreement) as amended by this Amendment No. 6; and
(b)
the schedule delivered to the Administrative Agents pursuant to Section 6(e) of this Amendment No. 6 is, to the Loan Parties’ knowledge, true and correct in all material respects on and as of the Amendment No. 6 Effective Date.
SECTION 6.    CONDITIONS PRECEDENT. The effectiveness of this Amendment No. 6 and the obligation of the 2019 Incremental Revolving Lenders to provide the 2019 Incremental Revolving Commitments shall be subject to the satisfaction or waiver of the following conditions precedent (the date on which such conditions precedent are so satisfied or waived, the “Amendment No. 6 Effective Date”):  
(a)
The Existing Administrative Agent shall have received a duly authorized, executed and delivered counterpart of the signature page to this Amendment No. 6 from each Loan Party named on the signature pages hereto, the Administrative Agents and the 2019 Incremental Revolving Lenders.
(b)
Any fees required to be paid on or before the Amendment No. 6 Effective Date to the Existing Administrative Agent shall have been paid and, unless waived by the Existing Administrative Agent, to the extent invoiced at least three Business Days prior to the Amendment No. 6 Effective Date, the Borrower shall have paid all expenses of the Existing Administrative Agent to the extent required to be paid pursuant to Section 10.04 of the Credit Agreement or otherwise.
(c)
No Default or Event of Default shall exist, or would result immediately, from the incurrence of the 2019 Incremental Revolving Commitments or the making of any 2019 Incremental Revolving Loans on the Amendment No. 6 Effective Date.
(d)
The representations and warranties of (i) the Borrower contained in Article V of the Credit Agreement and (ii) each Loan Party contained in each other Loan Document shall be true and correct in all material respects on and as of the Amendment No. 6 Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, and except that the representations and warranties contained in subsection (b) of Section 5.05 of the Credit Agreement shall

7



be deemed to refer to the most recent statements furnished pursuant to clause (b) of Section 6.01 of the Credit Agreement; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality or by a reference to a Material Adverse Effect in the text thereof.
(e)
The Existing Administrative Agent shall have received a schedule in form and substance reasonably acceptable to the Administrative Agents with respect to all real property that is fee owned or leased by the Loan Parties as of the Amendment No. 6 Effective Date, which schedule shall include such information necessary to identify any Building located on Material Real Property and constituting Collateral for the purpose of obtaining a corresponding completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination. Such schedule is attached hereto as Schedule 6(e).
(f)
The Existing Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in clauses (c) and (d) of this Section 6 have been satisfied.
(g)
On the Amendment No. 6 Effective Date, the Existing Administrative Agent shall have received a customary opinion of Jones Day, counsel to the Borrower and special New York counsel to the other Loan Parties addressed to the Administrative Agents, the Collateral Trustee and the Lenders and dated the Amendment No. 6 Effective Date.
(h)
The Existing Administrative Agent shall have received (i) such certificates of resolutions or other action, incumbency certificates and/or other certificates of duly authorized officers of each Loan Party and Gibraltar Holdings, in each case, as the Existing Administrative Agent may reasonably require evidencing the identity, authority and capacity of each officer of each Loan Party or Gibraltar Holdings and (ii) such documents and certifications as the Existing Administrative Agent may reasonably require to evidence that each Loan Party and Gibraltar Holdings is duly organized or formed, and that each Loan Party and Gibraltar Holdings is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(i)
The Existing Administrative Agent shall have received a solvency certificate from the chief financial officer of the Borrower in the form of Exhibit K of the Credit Agreement, which demonstrates that the Borrower and its Restricted Subsidiaries, on a consolidated basis, are, and after giving effect to the transactions contemplated hereby, will be, Solvent.
(j)
The 2019 Incremental Revolving Lenders and the Existing Administrative Agent shall have received at least three Business Days prior to the Amendment No. 6 Effective Date all documentation and other information required by regulatory authorities with respect to the Borrower and the other Loan Parties under applicable “know your

8



customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, that has been requested by the 2019 Incremental Revolving Lenders and the Existing Administrative Agent at least ten Business Days prior to the Amendment No. 6 Effective Date.
(k)
The Collateral Trustee shall have received a completed standard “life of loan” flood hazard determination form for each property that contains structures and is encumbered by a Mortgage, and if the property is located in an area designated by the U.S. Federal Emergency Management Agency (or any successor agency) as having special flood or mud slide hazards, (i) a notification from the Borrower to the Collateral Trustee (“Borrower Notice”) that flood insurance coverage under the National Flood Insurance Program (“NFIP”) created by the U.S. Congress pursuant to the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973, the National Flood Insurance Reform Act of 1994 and the Flood Insurance Reform Act of 2004 is not available because the applicable community does not participate in the NFIP, (ii) documentation evidencing the Collateral Trustee’s receipt of the Borrower Notice (e.g., countersigned Borrower Notice, return receipt of certified U.S. Mail, or overnight delivery), and (iii) if a Borrower Notice is required to be given and flood insurance is available in the community in which the property is located, a copy of one of the following: the flood insurance policy, the Borrower’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance reasonably satisfactory to the Controlling Representative (as defined in the Collateral Trust Agreement).
(l)
The Successor Administrative Agent shall have received a duly authorized, executed and delivered Resignation and Appointment Agreement, in escrow, to be effective as of the Effective Time, from the Existing Administrative Agent, the Borrower and the Successor Administrative Agent.
(m)
The Successor Administrative Agent shall have received a duly authorized, executed and delivered amendment to the Amended Credit Agreement substantially in the form attached hereto as Annex B (the “Seventh Amendment”), in escrow, to be effective as of the Amendment No. 7 Effective Date (as defined therein), from each Loan Party named on the signature pages thereto, the Successor Administrative Agent and each Lender named on the signature pages thereto.
SECTION 7.    REAFFIRMATION.
(a)
To induce the 2019 Incremental Revolving Lenders and the Administrative Agents to enter into this Amendment No. 6, each of the Loan Parties and Gibraltar Holdings hereby acknowledges and reaffirms its obligations under each Loan Document to which it is a party, including, without limitation, any grant, pledge or collateral assignment of a lien or security interest, as applicable, contained therein, in each case as amended, restated, amended and restated, supplemented or otherwise modified prior to or as of the date hereof (including as amended pursuant to the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth

9



Amendment, the Technical Amendment to Credit Agreement, dated as of July 19, 2018, and this Amendment No. 6 and the incurrence of the 2019 Incremental Revolving Commitments hereunder) (collectively, the “Reaffirmed Documents”). The Borrower acknowledges and agrees that each of the Loan Documents to which it is a party or otherwise bound shall continue in full force and effect and that all of its obligations thereunder shall not be impaired or limited by the execution or effectiveness of this Amendment No. 6.
(b)
In furtherance of the foregoing Section 7(a), each Loan Party, in its capacity as a Guarantor under the Guaranty to which it is a party (in such capacity, each a “Reaffirming Loan Guarantor”), reaffirms its guarantee of the Secured Obligations under the terms and conditions of such Guaranty and agrees that such Guaranty remains in full force and effect to the extent set forth in such Guaranty and after giving effect to this Amendment No. 6 and the incurrence of the 2019 Incremental Revolving Commitments hereunder, and is hereby ratified, reaffirmed and confirmed. Each Reaffirming Loan Guarantor hereby confirms that it consents to the terms of this Amendment No. 6 and the Amended Credit Agreement and that the principal of, the interest and premium (if any) on, and fees related to, the 2019 Incremental Revolving Commitments constitute “Secured Obligations” under the Loan Documents. Each Reaffirming Loan Guarantor hereby (i) acknowledges and agrees that the Guaranty and each of the Loan Documents to which it is a party or otherwise bound shall continue in full force and effect and that all of its obligations thereunder shall not be impaired or limited by the execution or effectiveness of this Amendment No. 6, (ii) acknowledges and agrees that it will continue to guarantee to the fullest extent possible in accordance with the Loan Documents the payment and performance of all Secured Obligations under each of the Loan Documents to which it is a party (including all such Secured Obligations as amended, reaffirmed and/or increased pursuant to this Amendment No. 6 and the incurrence of the 2019 Incremental Revolving Commitments hereunder) and (iii) acknowledges, agrees and warrants for the benefit of the Administrative Agents, the Collateral Trustee and each other Secured Party that there are no rights of set-off or counterclaim, nor any defenses of any kind, whether legal, equitable or otherwise, that would enable such Reaffirming Loan Guarantor to avoid or delay timely performance of its obligations under the Loan Documents.
(c)
In furtherance of the foregoing Section 7(a), Gibraltar Holdings and each of the Loan Parties that is party to any Security Document, in its capacity as a “grantor”, “pledgor” or other similar capacity under such Security Document (in such capacity, each a “Reaffirming Grantor”), hereby acknowledges that it has reviewed and consents to the terms and conditions of this Amendment No. 6 and the transactions contemplated hereby, including the extension of credit in the form of the 2019 Incremental Revolving Commitments hereunder. In addition, each Reaffirming Grantor reaffirms the security interests granted by such Reaffirming Grantor under the terms and conditions of the Security Documents (in each case, to the extent a party thereto) to secure the Secured Obligations (including all such Secured Obligations as amended, reaffirmed and/or increased pursuant to this Amendment No. 6 and the incurrence of the 2019 Incremental Revolving Commitments hereunder) and agrees that such security interests remain in full force and effect and are hereby ratified, reaffirmed and

10



confirmed. Each Reaffirming Grantor hereby (i) confirms that each Security Document to which it is a party or is otherwise bound and all Collateral encumbered thereby will continue to secure, to the fullest extent possible in accordance with the Security Documents, the payment and performance of the Secured Obligations (including all such Secured Obligations as amended, reaffirmed and/or increased pursuant to this Amendment No. 6 and the incurrence of the 2019 Incremental Revolving Commitments hereunder), including without limitation the payment and performance of all such applicable Secured Obligations that are joint and several obligations of each Guarantor and each Reaffirming Grantor now or hereafter existing, in each case pursuant to the terms of the Security Documents such Reaffirming Grantor is a party to, (ii) confirms its respective grant to the Collateral Trustee for the benefit of the Secured Parties of the security interest in and continuing Lien on all of such Reaffirming Grantor’s right, title and interest in, to and under all Collateral to which such Reaffirming Grantor granted a security interest in and a continuing Lien on pursuant to the terms of the Security Documents to which such Reaffirming Grantor is party to, in each case whether now owned or existing or hereafter acquired or arising and wherever located, as collateral security for the prompt and complete payment and performance in full when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise, of all applicable Secured Obligations (including all such Secured Obligations as amended, reaffirmed and/or increased pursuant to this Amendment No. 6 and the incurrence of the 2019 Incremental Revolving Commitments hereunder), subject to the terms contained in the applicable Loan Documents and (iii) confirms its respective pledges, grants of security interests and other obligations, as applicable, under and subject to the terms of each of the Security Documents to which it is a party.
(d)
Gibraltar Holdings and each Guarantor (other than the Borrower) acknowledges and agrees that (i) it is not required by the terms of the Credit Agreement or any other Loan Document to consent to this Amendment No. 6 and (ii) nothing in the Credit Agreement, this Amendment No. 6 or any other Loan Document shall be deemed to require the consent of Gibraltar Holdings or such Guarantor to any future amendment, consent or waiver of the terms of the Credit Agreement.
(e)
As promptly as practical but in no event later than 120 days after the Amendment No. 6 Effective Date, subject to extension by the Successor Administrative Agent in its sole discretion, the Borrower and applicable Guarantors shall take the actions specified in Sections 3.8(d)(1)-(3) of the Collateral Trust Agreement.
(f)
As promptly as practical but in no event later than 30 days after the Amendment No. 6 Effective Date, subject to extension by the Successor Administrative Agent in its sole discretion, Gibraltar Holdings shall execute and deliver a deed of confirmation, in form and substance reasonably satisfactory to the Successor Administrative Agent.
SECTION 8.    MISCELLANEOUS PROVISIONS.
(a)
Ratification. This Amendment No. 6 is limited to the matters specified herein and shall not constitute acceptance or waiver, or, to the extent not expressly set forth

11



herein, an amendment or modification, of any other provision of the Credit Agreement or any other Loan Document. Nothing herein contained shall be construed as a substitution or novation of the obligations outstanding under the Credit Agreement or any other Loan Document or instruments securing the same, which shall remain in full force and effect as modified hereby or by instruments executed concurrently herewith, and each of the parties hereto acknowledges and agrees that the terms of this Amendment No. 6 constitute an amendment of the terms of pre-existing Indebtedness and the related agreement, as evidenced by the Amended Credit Agreement.
(b)
Governing Law; Submission to Jurisdiction, Consent to Service of Process, Waiver of Jury Trial, Etc. Sections 10.14 and 10.15 of the Credit Agreement are incorporated by reference herein as if such Sections appeared herein, mutatis mutandis.
(c)
Severability. Section 10.12 of the Credit Agreement is incorporated by reference herein as if such Section appeared herein, mutatis mutandis.
(d)
Counterparts; Headings. This Amendment No. 6 may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Amendment No. 6 by telecopy or other electronic imaging means (i.e., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Amendment No. 6. Article and Section headings used herein are included for convenience of reference only, shall not constitute a part hereof, shall not be given any substantive effect and shall not affect the interpretation of this Amendment No. 6.
(e)
Notice. For purposes of the Credit Agreement, the notice address of each 2019 Incremental Revolving Lender shall be as set forth on Schedule 1 hereto.
(f)
Recordation of 2019 Incremental Revolving Commitments. On the Amendment No. 6 Effective Date, the Existing Administrative Agent will record in the Register the 2019 Incremental Revolving Commitments made hereunder by the 2019 Incremental Revolving Lenders as “Incremental Revolving Commitments” under the 2017 Incremental Revolving Facility.
(g)
Amendment, Modification and Waiver. This Amendment No. 6 may not be amended nor may any provision hereof be waived except pursuant to a writing signed by each of the parties hereto.
(h)
Successor Administrative Agent. Immediately upon the effectiveness of this Amendment No. 6 and upon the Effective Time, (A) the 2019 Incremental Revolving Lenders (which collectively shall constitute the Required Lenders as of the Amendment No. 6 Effective Date and the Effective Time) (i) shall be deemed to have received the requisite time period for notice related to the resignation of the Existing Administrative Agent, recognizing that this is not technically needed in the circumstances, (ii) be deemed to have appointed JPMorgan Chase Bank, N.A., as Successor Administrative Agent, and (iii) hereby acknowledge, consent and agree to

12



the provisions of the Resignation and Appointment Agreement as if signatories thereto, (B) the Borrower shall be deemed to have approved of such appointment, and (C) JPMorgan Chase Bank, N.A. shall be deemed to agree to serve as Successor Administrative Agent, in each case, from and after the Effective Time and pursuant to Section 9.06 of the Amended Credit Agreement.

[Remainder of page intentionally blank; signatures begin next page]

13




IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 6 to be duly executed by their respective authorized officers as of the date first above written.

PEABODY ENERGY CORPORATION, as Borrower


By: /s/ Mark A Spurbeck    
Name: Mark A. Spurbeck
Title: Senior Vice President and Chief Accounting Officer

[Signature Page to Amendment No. 6 to Credit Agreement]




AMERICAN LAND DEVELOPMENT, LLC
AMERICAN LAND HOLDINGS OF COLORADO, LLC
AMERICAN LAND HOLDINGS OF ILLINOIS, LLC
AMERICAN LAND HOLDINGS OF INDIANA, LLC
AMERICAN LAND HOLDINGS OF KENTUCKY, LLC
BIG RIDGE, INC.
BTU WESTERN RESOURCES, INC.
COALSALES II, LLC
CONSERVANCY RESOURCES, LLC
EL SEGUNDO COAL COMPANY, LLC
HAYDEN GULCH TERMINAL, LLC
HILLSIDE RECREATIONAL LANDS, LLC
KAYENTA MOBILE HOME PARK, INC.
KENTUCKY UNITED COAL, LLC
MOFFAT COUNTY MINING, LLC
NEW MEXICO COAL RESOURCES, LLC
PEABODY AMERICA, LLC
PEABODY ARCLAR MINING, LLC
PEABODY ASSET HOLDINGS, LLC
PEABODY BEAR RUN MINING, LLC
PEABODY BEAR RUN SERVICES, LLC
PEABODY CABALLO MINING, LLC
PEABODY CARDINAL GASIFICATION, LLC
PEABODY CHINA, LLC
PEABODY COALSALES, LLC
PEABODY COALTRADE, LLC
PEABODY COLORADO OPERATIONS, LLC
PEABODY COLORADO SERVICES, LLC
PEABODY COULTERVILLE MINING, LLC


By: /s/ James A. Tichenor                    
Name: James A. Tichenor
Title: Vice President and Treasurer


[Signature Page to Amendment No. 6 to Credit Agreement]



PEABODY DEVELOPMENT COMPANY, LLC
PEABODY ELECTRICITY, LLC
PEABODY EMPLOYMENT SERVICES, LLC
PEABODY GATEWAY NORTH MINING, LLC
PEABODY GATEWAY SERVICES, LLC
PEABODY GLOBAL FUNDING, LLC
PEABODY HOLDING COMPANY, LLC
PEABODY IC FUNDING CORP.
PEABODY ILLINOIS SERVICES, LLC
PEABODY INDIANA SERVICES, LLC
PEABODY INTERNATIONAL HOLDINGS, LLC
PEABODY INTERNATIONAL INVESTMENTS, INC.
PEABODY INTERNATIONAL SERVICES, INC.
PEABODY INVESTMENTS CORP.
PEABODY MIDWEST MANAGEMENT SERVICES, LLC
PEABODY MIDWEST MINING, LLC
PEABODY MIDWEST OPERATIONS, LLC
PEABODY MIDWEST SERVICES, LLC
PEABODY MONGOLIA, LLC
PEABODY NATURAL GAS, LLC
PEABODY NATURAL RESOURCES COMPANY
PEABODY NEW MEXICO SERVICES, LLC
PEABODY OPERATIONS HOLDING, LLC
PEABODY POWDER RIVER MINING, LLC
PEABODY POWDER RIVER OPERATIONS, LLC
PEABODY POWDER RIVER SERVICES, LLC
PEABODY ROCKY MOUNTAIN MANAGEMENT SERVICES, LLC
PEABODY ROCKY MOUNTAIN SERVICES, LLC


By: /s/ James A. Tichenor                    
Name: James A. Tichenor
Title: Vice President and Treasurer


[Signature Page to Amendment No. 6 to Credit Agreement]



PEABODY SCHOOL CREEK MINING, LLC
PEABODY SERVICES HOLDINGS, LLC
PEABODY SOUTHEAST MINING, LLC
PEABODY VENEZUELA COAL CORP.
PEABODY VENTURE FUND, LLC
PEABODY WILD BOAR MINING, LLC
PEABODY WILD BOAR SERVICES, LLC
PEABODY WILLIAMS FORK MINING, LLC
PEABODY WYOMING SERVICES, LLC
PEABODY-WATERSIDE DEVELOPMENT, L.L.C.
SAGE CREEK LAND & RESERVES, LLC
SENECA PROPERTY, LLC
SHOSHONE COAL CORPORATION
TWENTYMILE COAL, LLC
UNITED MINERALS COMPANY, LLC


By: /s/ James A. Tichenor                    
Name: James A. Tichenor
Title: Vice President and Treasurer


NGS ACQUISITION CORP., LLC


By: /s/ James A. Tichenor                    
Name: James A. Tichenor
Title: Treasurer


BIG SKY COAL COMPANY


By: /s/ Bryce G. West                    
Name: Bryce G. West
Title: President


[Signature Page to Amendment No. 6 to Credit Agreement]



PEABODY SAGE CREEK MINING, LLC
PEABODY TWENTYMILE MINING, LLC
PEC EQUIPMENT COMPANY, LLC
SAGE CREEK HOLDINGS, LLC
SENECA COAL COMPANY, LLC

By: /s/ Scott T. Jarboe                    
Name: Scott T. Jarboe
Title: Secretary


PEABODY WESTERN COAL COMPANY


By: /s/ Eric R. Waller                    
Name: Eric R. Waller
Title: Secretary


PEABODY GLOBAL HOLDINGS, LLC


By: /s/ James A. Tichenor                    
Name: James A. Tichenor
Title: Vice President and Treasurer


[Signature Page to Amendment No. 6 to Credit Agreement]



JPMORGAN CHASE BANK, N.A., as a 2019 Incremental Revolving Lender

By:
/s/ Peter S. Predun    
    Name: Peter S. Predun
    Title: Executive Director


[Signature Page to Amendment No. 6 to Credit Agreement]



GOLDMAN SACHS BANK USA, as a 2019 Incremental Revolving Lender

By:
/s/ Thomas M. Manning    
    Name: Thomas M. Manning
    Title: Authorized Signatory


[Signature Page to Amendment No. 6 to Credit Agreement]



CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as a 2019 Incremental Revolving Lender

By:
/s/ Mikhail Faybusovich    
    Name: Mikhail Faybusovich
    Title: Authorized Signatory

By: /s/ Christopher Zybrick    
    Name: Christopher Zybrick
    Title: Authorized Signatory

[Signature Page to Amendment No. 6 to Credit Agreement]



DEUTSCHE BANK AG NEW YORK BRANCH, as a 2019 Incremental Revolving Lender

By:
/s/ Michael Strobel    
    Name: Michael Strobel
    Title: Vice President

By: /s/ Yumi Okabe    
    Name: Yumi Okabe
    Title: Vice President

[Signature Page to Amendment No. 6 to Credit Agreement]



Bank Of Montreal, Chicago Branch, as a 2019 Incremental Revolving Lender

By:
/s/ Paul Heikkila    
    Name: Paul Heikkila
    Title: Director


[Signature Page to Amendment No. 6 to Credit Agreement]



REGIONS BANK, as a 2019 Incremental Revolving Lender

By:
/s/ Tedrick Tarver    
    Name: Tedrick Tarver
    Title: Director


[Signature Page to Amendment No. 6 to Credit Agreement]



COMMERCE BANK, as a 2019 Incremental Revolving Lender

By:
/s/ Anthony Clarkson    
    Name: Anthony Clarkson
    Title: Sr. Vice President


[Signature Page to Amendment No. 6 to Credit Agreement]



GOLDMAN SACHS BANK USA, as Existing Administrative Agent

By:
/s/ Douglas Tansey    
    Name: Douglas Tansey
    Title: Authorized Signatory

[Signature Page to Amendment No. 6 to Credit Agreement]



JPMORGAN CHASE BANK, N.A., as Successor Administrative Agent

By:
/s/ Peter S. Predun    
    Name: Peter S. Predun
    Title: Executive Director




 


[Signature Page to Amendment No. 6 to Credit Agreement]



SCHEDULE 1

2019 Incremental Revolving Lenders
2019 Incremental Revolving Commitments
 
Goldman Sachs Bank USA
$20,000,000
 
JPMorgan Chase Bank, N.A.
$25,000,000
 
Credit Suisse AG, Cayman Islands Branch
$25,000,000
 
Bank of Montreal, Chicago Branch
$25,000,000
 
Regions Bank
$50,000,000
 
Commerce Bank
$25,000,000
 




2019 Incremental Revolving Lenders
2019 Incremental Revolving Commitments
 
Deutsche Bank AG New York Branch
$25,000,000
 
TOTAL
$195,000,000
 




2



SCHEDULE 2

Incremental Revolving Lenders
Incremental Revolving Commitments
Applicable Percentage
Goldman Sachs Bank USA
$75,000,000
13.761467890%
JPMorgan Chase Bank, N.A.
$75,000,000
13.761467890%
Credit Suisse AG, Cayman Islands Branch
$75,000,000
13.761467890%
Bank of Montreal, Chicago Branch
$75,000,000
13.761467890%
Deutsche Bank AG New York Branch
$75,000,000
13.761467890%
Bank of America, N.A.
$30,000,000
5.504587155%
Macquarie Bank Limited
$25,000,000
4.587155963%
Regions Bank
$75,000,000
13.761467890%
Commerce Bank
$40,000,000
7.33944951%
TOTAL
$545,000,000
100%






SCHEDULE 6(e)

NO.
OWNER NAME
STREET ADDRESS
CITY
COUNTY
STATE
ZIP CODE
COMMENTS
1.    
PEABODY SOUTHEAST MINING, LLC
8488 Nancy Ann Bend Rd
Adger
Jefferson
AL
35006-2232
CERTIFIED BY LAT & LONG PROVIDED BY THE CUSTOMER (33.481722, -87.275556)
2.    
PEABODY WESTERN COAL COMPANY
871 Liberator Dr
Grand Canyon
Coconino
AZ
86023
CERTIFIED BY COORDINATES 35.9523333, -112.147
3.    
TWENTYMILE COAL, LLC
29515 Route County Rd #27
Oak Creek
Routt
CO
80467
CERTIFIED BY COORDINATES 40.351666, -107.055833
4.    
SAGE CREEK HOLDINGS, LLC
29515 Rcr 33
Oak Creek
Routt
CO
80467
CERTIFIED BY STR AND COORDINATES 40.426, -107.126 NE/4 NE/4 SECTION 3, T5N, R87W ROUTT COUNTY, CO
5.    
PEABODY ARCLAR MINING, LLC
420 Long Lane Rd
Equality
Saline
IL
62934-2047
CERTIFIED BY COORDINATES 37.763611, -88.3888
6.    
PEABODY ARCLAR MINING, LLC
115 Grayson Ln
Eldorado
Saline
IL
62930-3947
CERTIFIED BY COORDINATES 37.775, -88.391944
7.    
AMERICAN LAND HOLDINGS OF ILLINOIS, LLC
12626 Sarah Rd
Coulterville
Randolph
IL
62237-1916
CERTIFIED BY CORDINATES - 38.165985, -89.639818,
8.    
AMERICAN LAND HOLDINGS OF ILLINOIS, LLC
12968 State Route 13
Coulterville
Randolph
IL
62237-1112
CERTIFIED BY COORDINATES 38.18805555, -89.62055555
9.    
AMERICAN LAND HOLDINGS OF ILLINOIS, LLC
12722 Sarah Rd
Coulterville
Randolph
IL
62237-1918
CERTIFIED BY LEGAL
10.    
AMERICAN LAND HOLDINGS OF ILLINOIS, LLC
12273 Ziegler Mine Rd
Sparta
Randolph
IL
62286
CERTIFY BY LEGAL
11.    
AMERICAN LAND HOLDINGS OF ILLINOIS, LLC
1165 Old Highway 13
Harrisburg
Saline
IL
62946-5106
CERTIFIED BY LEGALS HB,S15,T09,R07 ,QNE,L ,B SW1/4 NE1/4 2008/300 8/11 W/D 09-15-200-002-0011
12.    
AMERICAN LAND HOLDINGS OF ILLINOIS, LLC
725 Old Highway 13
Harrisburg
Saline
IL
62946-5105
CERTIFIED BY LEGALS N37D44'24.0" W88D25'33.6", HB,S15,T09,R07 ,QNW,L ,B PT SW1/4 NW1/4 2018/839 1/12 W/D




13.    
AMERICAN LAND HOLDINGS OF ILLINOIS, LLC
1720 Old Highway 13
Equality
Saline
IL
62934-2019
CERTIFIED BY LEGALS EQ,S14,T09,R07 ,QSW,L ,B PT W1/2 SW1/4 1A 2021/1000 3/12 W/D 09-14-300-003-0040
14.    
AMERICAN LAND HOLDINGS OF ILLINOIS, LLC
150 Carnahan Rd
Equality
Saline
IL
62934-2027
CERTIFIED BY LEGALS EQ,S14,T09,R07 ,QSW,L ,B N1/2 SW1/4 SW1/4 2021/993 3/12 W/D 09-14-300-011-0011
15.    
PEABODY ARCLAR MINING, LLC
580 Long Lane Rd
Equality
Saline
IL
62934-2043
CERTIFIED BY LEGAL EQ,S01,T09,R07 ,QSW,L ,B PT S1/2 SW1/4 EZ 1729/287 8/04 W/D 09-01-300-008-0021
16.    
AMERICAN LAND HLDGS OF INDIANA, LLC
7633 S County Road 400 E
Carlisle
Sullivan
IN
47838-8057
CERTIFIED BY LEGALS CEN PT NW SW 8-6-8 20.25 ACRES
17.    
AMERICAN LAND HLDGS OF INDIANA, LLC
5280 S County Road 400 E
Carlisle
Sullivan
IN
47838-8049
CERTIFIED BY LEGALS PT W1/2 NW .81AC 32-7-8
18.    
AMERICAN LAND HLDGS OF INDIANA, LLC
9445 S County Road 350 E
Carlisle
Sullivan
IN
47838-8078
CERTIFIED BY LEGALS SW NE 19-6-8 48.88AC
19.    
AMERICAN LAND HLDGS OF INDIANA, LLC
5401 E County Road 650 S
Carlisle
Sullivan
IN
47838-8061
CERTIFIED BY LEGALS PT SW COR SE NW 1.38 ac, CEN PT SE NW .62 ac
20.    
AMERICAN LAND HLDGS OF INDIANA, LLC
3206 E County Road 975 S
Carlisle
Sullivan
IN
47838
CERTIFIED BY LEGALS PT N1/2 SW FRL 7.8AC, N SIDE W END S1/2 S1/2 54AC, FRL N1/2
21.    
AMERICAN LAND HLDGS OF INDIANA, LLC
3033 E County Road 225 S
Sullivan
Sullivan
IN
47882-7741
CERTIFIED BY LEGALS 18-7-8 21.72 ACRES PT NW NW
22.    
AMERICAN LAND HLDGS OF INDIANA, LLC
3194 E County Road 225 S
Sullivan
Sullivan
IN
47882-7741
CERTIFIED BY LEGALS 18-7-8 1AC NE COR SW NW
23.    
AMERICAN LAND HLDGS OF INDIANA, LLC
4248 E County Road 500 S
Carlisle
Sullivan
IN
47838-8047
CERTIFIED BY LEGALS IN N PT E 1/2 NW 8.25 ACRES, N CEN PT E 1/2 NW 6.00 ACRES,
24.    
AMERICAN LAND HLDGS OF INDIANA, LLC
4491 E County Road 500 S
Carlisle
Sullivan
IN
47838-8046
CERTIFIED BY LEGALS, PT SE SW 29-7-8 5.01 ACRES
25.    
AMERICAN LAND HLDGS OF INDIANA, LLC
4548 E County Road 500 S
Carlisle
Sullivan
IN
47838-8046
CERTIFIED BY LEGALS PT E 1/2 NW 61.00 ACRES, N CEN PT E 1/2 NW 2.25 ACRES, PT SW
26.    
AMERICAN LAND HLDGS OF INDIANA, LLC
3762 E County Road 350 S
Sullivan
Sullivan
IN
47882-7732
CERTIFIED BY LEGALS PT N END W1/2 SE 1.26AC 19-7-8
27.    
AMERICAN LAND HLDGS OF INDIANA, LLC
2087 S County Road 275 E
Sullivan
Sullivan
IN
47882-7743
CERTIFIED BY LEGALS 13-7-9 1AC PT NE NE
28.    
AMERICAN LAND HLDGS OF INDIANA, LLC
6166 E County Road 200 S
Sullivan
Sullivan
IN
47882-7722
CERTIFIED BY LEGALS 15-7-8 1.75AC PT NW NW

2


29.    
AMERICAN LAND HLDGS OF INDIANA, LLC
6132 E County Road 200 S
Sullivan
Sullivan
IN
47882-7722
CERTIFIED BY PARCEL 15-7-8 2AC IN NW NW
30.    
AMERICAN LAND HLDGS OF INDIANA, LLC
2272 S State Road 159
Dugger
Sullivan
IN
47848-8086
CERTIFIED BY LAT & LONG PROVIDED BY THE CUSTOMER ( N39°02'56" W87°15'39" )
31.    
AMERICAN LAND HLDGS OF INDIANA, LLC
2188 S State Road 159
Dugger
Sullivan
IN
47848-8149
CERTIFIED BY LEGAL 14-7-8 PT NE NE 3.25 ACRES
32.    
AMERICAN LAND HLDGS OF INDIANA, LLC
5521 E County Road 650 S
Carlisle
Sullivan
IN
47838-8061
CERTIFIED BY LEGAL CEN PT S PT NE 24ac 04-06-08 24.000
33.    
AMERICAN LAND HLDGS OF INDIANA, LLC
2453 S County Road 350 E
Sullivan
Sullivan
IN
47882-7740
CERTIFIED BY LAT & LONG PROVIDED BY THE CUSTOMER ( N39°02'49" W87°20'38" )
34.    
AMERICAN LAND HLDGS OF INDIANA, LLC
3565 E County Road 350 S
Sullivan
Sullivan
IN
47882-7860
CERTIFIED BY LEGALS
35.    
AMERICAN LAND HLDGS OF INDIANA, LLC
4399 E County Road 650 S
Carlisle
Sullivan
IN
47838-8053
CERTIFIED BY LEGALS
36.    
AMERICAN LAND HLDGS OF INDIANA, LLC
3481 E County Road 225 S
Sullivan
Sullivan
IN
47882-7814
CERTIFIED BY LEGALS
37.    
AMERICAN LAND HLDGS OF INDIANA, LLC
3406 E County Road 350 S
Sullivan
Sullivan
IN
47882-7838
CERTIFIED BY LEGALS
38.    
AMERICAN LAND HLDGS OF INDIANA, LLC
2988 E County Road 225 S
Sullivan
Sullivan
IN
47882-7742
CERTIFIED BY LEGALS 13-7-9 .78AC PT N SIDE SE N
39.    
AMERICAN LAND HLDGS OF INDIANA, LLC
2329 S County Road 275 E
Sullivan
Sullivan
IN
47882-7744
CERTIFIED BY LEGALS 13-7-9 6.198AC PT N SIDE SE NE
40.    
AMERICAN LAND HLDGS OF INDIANA, LLC
2346 S County Road 275 E
Sullivan
Sullivan
IN
47882-7744
CERTIFIED BY LEGAL 13-7-9 30AC PT SW NE
41.    
AMERICAN LAND HLDGS OF INDIANA, LLC
2506 E County Road 250 S
Sullivan
Sullivan
IN
47882-7745
CERTIFIED BY LEAGLS PT NW SE 13-7-9 2.15AC
42.    
AMERICAN LAND HLDGS OF INDIANA, LLC
2696 E County Road 250 S
Sullivan
Sullivan
IN
47882-7745
CERTIFIED BY LEGAL 13-7-9 37.85AC NW SE
43.    
AMERICAN LAND HLDGS OF INDIANA, LLC
3017 E County Road 425 S
Sullivan
Sullivan
IN
47882-7734
CERTIFIED BY LEGALS PT N1/2 NW 1.75AC 30-7-8
44.    
AMERICAN LAND HLDGS OF INDIANA, LLC
2279 S County Road 275 E
Sullivan
Sullivan
IN
47882
CERTIFIED BY LEGALS, 13-7-9 5.256AC N SIDE SE NE
45.    
AMERICAN LAND HLDGS OF INDIANA, LLC
2905 S County Road 350 E
Sullivan
Sullivan
IN
47882-7859
CERTIFIED BY LEGAL 18-7-8 SW SE 40 ACRES
46.    
AMERICAN LAND HLDGS OF INDIANA, LLC
2486 S County Road 350 E
Sullivan
Sullivan
IN
47882-7740
CERTIFIED BY LEGALS , 18-7-8 2.00 ACRES SE COR SE NW

3


47.    
AMERICAN LAND HLDGS OF INDIANA, LLC
2595 E County Road 250 S
Sullivan
Sullivan
IN
47882-7745
CERTIFIED BY LEGALS , 13-7-9 5AC PT SW NE
48.    
AMERICAN LAND HLDGS OF INDIANA, LLC
2340 S County Road 350 E
Sullivan
Sullivan
IN
47882-7740
CETIFIED BY LEGALS, 18-7-8 PT N1/2 SE NW 2AC
49.    
AMERICAN LAND HLDGS OF INDIANA, LLC
3394 E County Road 225 S
Sullivan
Sullivan
IN
47882-7814
CERTIFIED BY LEGALS, 18-7-8 10.70AC PT N1/2 SE NW
50.    
AMERICAN LAND HLDGS OF INDIANA, LLC
4799 E County Road 800 S
Carlisle
Sullivan
IN
47838-8012
CERTIFIED BY LEGALS, SE SE 8-6-8 35.00 ACRES
51.    
AMERICAN LAND HLDGS OF INDIANA, LLC
3568 E County Road 900 S
Carlisle
Sullivan
IN
47838-8075
CERTIFIED BY LEGALS PT NW NE 3.284AC 19-6-8
52.    
AMERICAN LAND HLDGS OF INDIANA, LLC
3244 E County Road 225 S
Sullivan
Sullivan
IN
47882-7741
CERTIFIED BY LEGAL 18-7-8 5.00 ACRES PT SW NW
53.    
AMERICAN LAND HLDGS OF INDIANA, LLC
6031 S County Road 400 E
Carlisle
Sullivan
IN
47838
CERTIFIED BY LEGAL NW NW + 5-6-8 40.00 ACRES
54.    
AMERICAN LAND HLDGS OF INDIANA, LLC
3966 S County Road 350 E
Sullivan
Sullivan
IN
47882-7733
CERTIFIED BY LEGAL PT S END E1/2 SW 19-7-8 1AC
55.    
AMERICAN LAND HLDGS OF INDIANA, LLC
4037 E County Road 350 S
Sullivan
Sullivan
IN
47882-7732
CERTIFIED BY LEGALS W1/2 SW NW
56.    
AMERICAN LAND HLDGS OF INDIANA, LLC
6416 E County Road 750 S
Carlisle
Sullivan
IN
47838-8015
CERTIFIED BY LEGALS 10-6-8 15AC IN NE COR SW
57.    
AMERICAN LAND HLDGS OF INDIANA, LLC
4448 E County Road 800 S
Carlisle
Sullivan
IN
47838-8012
CERTIFIED BY LEGALS PT E 1/2 NE NW 17-6-8 1.50 ACRES
58.    
AMERICAN LAND HLDGS OF INDIANA, LLC
4501 S County Road 425 E
Sullivan
Sullivan
IN
47882-7731
CERTIFIED BY LEGALS W 1/2 NE SW 29-7-8 20.00 ACRES
59.    
AMERICAN LAND HLDGS OF INDIANA, LLC
3995 S County Road 425 E
Sullivan
Sullivan
IN
47882-7731
CERTIFIED BY LEGALS PT NE NE 35.00 ACRES, PT NW NE NW 2.00ACNE NW 38.00 ACRES, W
60.    
AMERICAN LAND HLDGS OF INDIANA, LLC
3691 E County Road 350 S
Sullivan
Sullivan
IN
47882-7732
CERTIFIED BY LEGALS 19-7-8 4.23 ACRES PT SW NE
61.    
AMERICAN LAND HLDGS OF INDIANA, LLC
5224 E 50 S
Francisco
Gibson
IN
47649-8919
CERTIFIED BY LEGALS PT SW SE 12-2-10 2 AC C-1
62.    
AMERICAN LAND HLDGS OF INDIANA, LLC
1221 S 550 E
Francisco
Gibson
IN
47649-9075
CERTIFIED BY LEGALS PT NE SE 13-2-10 3.34 AC C-1 D-7
63.    
AMERICAN LAND HLDGS OF INDIANA, LLC
495 S 550 E
Francisco
Gibson
IN
47649-8920
CERTIFIED BY LEGAL PT SE SE 12-2-10 2 AC C-1 D-7
64.    
AMERICAN LAND HLDGS OF INDIANA, LLC
13041 E 950 S
Oakland City
Gibson
IN
47660-7771
CERTIFIED BY LEGAL PT N 32-3-8 1.25 AC D-19

4


65.    
AMERICAN LAND HLDGS OF INDIANA, LLC
11915 E 1000 S
Oakland City
Gibson
IN
47660-7810
CERTIFIED BY PARCEL PT E SW 31 3 8 5.00 AC D-19
66.    
AMERICAN LAND HLDGS OF INDIANA, LLC
12047 E 1000 S
Oakland City
Gibson
IN
47660-7809
CERTIFIED BY PARCEL PT E SW 31 3 8 6.5083 AC D-19
67.    
AMERICAN LAND HLDGS OF INDIANA, LLC
9998 S County Road 1225e
Oakland City
Gibson
IN
47660
CERTIFIED BY LEGAL PT E 31-3-8 1.45 AC D-19
68.    
AMERICAN LAND HLDGS OF INDIANA, LLC
1481 S 725 E
Francisco
Gibson
IN
47649-9038
CERTIFIED BY LEGAL PT W SE 17-2-9 .60 AC D-7 C-1
69.    
AMERICAN LAND HOLDINGS OF INDIANA, LLC
7255 E County Road 600 S
Carlisle
Sullivan
IN
47838-8042
CERTIFIED BY COORDINATES 38.995, -87.27777
70.    
AMERICAN LAND HOLDINGS OF INDIANA, LLC
1225 N 725 E
Francisco
Gibson
IN
47649
38.339166, -87.416388
71.    
AMERICAN LAND HOLDINGS OF INDIANA, LLC
County Road 600 S 1100 E
Oakland City
Gibson
IN
47660
CERTIFIED BY COORDINATES 38.26416666, -87.36361111
72.    
AMERICAN LAND HOLDINGS OF INDIANA, LLC
566 Dickeyville Rd
Lynnville
Warrick
IN
47619-8257
CERTIFIED BY COORDINATES 38.158, -87.254
73.    
AMERICAN LAND HOLDINGS OF INDIANA, LLC
2999 Lynnville Rd
Lynnville
Warrick
IN
47619-8204
38.184, -87.327
74.    
AMERICAN LAND HLDGS OF INDIANA, LLC
5120 E County Road 425 S
Carlisle
Sullivan
IN
47838-8067
CERTIFIED BY LEGALS
75.    
AMERICAN LAND HLDGS OF INDIANA, LLC
7849 E County Road 500 S
Dugger
Sullivan
IN
47848-8123
CERTIFY BY LEGALS.
76.    
AMERICAN LAND HLDGS OF INDIANA, LLC
5010 S State Road 159
Dugger
Sullivan
IN
47848-8125
CERTIFIED BY LAT & LONG PROVIDED BY THE CUSTOMER - (N39°00'32" W87°15'36" )
77.    
AMERICAN LAND HLDGS OF INDIANA, LLC
4274 S County Road 600 E
Carlisle
Sullivan
IN
47838-8068
CERTIFIED BY LEGALS
78.    
AMERICAN LAND HLDGS OF INDIANA, LLC
7806 E County Road 500 S
Dugger
Sullivan
IN
47848-8123
CERTIFIED BY LAT & LONG PROVIDED BY THE CUSTOMER - ( N39°00'32" W87°15'46" )
79.    
AMERICAN LAND HLDGS OF INDIANA, LLC
5336 E County Road 900 S
Carlisle
Sullivan
IN
47838-8073
CERTIFED BY LEGALS

5


80.    
AMERICAN LAND HLDGS OF INDIANA, LLC
5297 E County Road 900 S
Carlisle
Sullivan
IN
47838-8073
CERTIFIED BY LEGALS
81.    
AMERICAN LAND HLDGS OF INDIANA, LLC
7744 IN-61
Boonville
Warrick
IN
47619
CERTIFIED BY LEGALS , PT E 1/2 NW S27 T4 R8 10 AC
82.    
AMERICAN LAND HLDGS OF INDIANA, LLC
8444 IN-61
Boonville
Warrick
IN
47619
CERTIFIED BY LEGALS .....PT N SIDE NE SW S22 T4 R8 2.50 A LIFE ESTATE MADDEN ERMIL & RUTH
83.    
AMERICAN LAND HLDGS OF INDIANA, LLC
8022 N STATE ROUTE 61
Boonville
Warrick
IN
47601
CERTIFIED BY LEGALS ......PT SE SW. S22 T4 R8. 1.4 A.
84.    
AMERICAN LAND HLDGS OF INDIANA, LLC
7622 IN-61
Boonville
Warrick
IN
47601
CERTIFIED BY LEGALS....PT E 1/2 NW S27 T4 R8 2. A
85.    
AMERICAN LAND HLDGS OF INDIANA, LLC
1411 Tecumseh Rd
Lynnville
Warrick
IN
47619-8242
CERTIFIED BY LEGALS, W 1/2 W 1/2 NE. S14 T4 R8. 40 A.
86.    
AMERICAN LAND HLDGS OF INDIANA, LLC
8144 N State Route 61
Boonville
Warrick
IN
47601-8336
CERTIFIED BY LEGALS ......PT SE SW. S22 T4 R8. 11.28 A.
87.    
AMERICAN LAND HLDGS OF INDIANA, LLC
2075 S County Road 200 E
Sullivan
Sullivan
IN
47882-7746
CERTIFIED BY LAT & LONG PROVIDED BY THE CUSTOMER ( N39°03'08.8" W87°22'20.2" )
88.    
AMERICAN LAND HLDGS OF INDIANA, LLC
10722 N State Route 61
Lynnville
Warrick
IN
47619-8238
CERTIFIED BY LEGAL PT N 1/2 SE NW S10 T4 R8 1.25 A
89.    
AMERICAN LAND HLDGS OF INDIANA, LLC
1633 Tecumseh Rd
Lynnville
Warrick
IN
47619-8244
CERTIFIED BY LEGAL PT E 1/2 NW. S14 T4 R8. 13.80
90.    
AMERICAN LAND HLDGS OF INDIANA, LLC
10122 Stanley Rd
Elberfeld
Warrick
IN
47613-9412
CERTIFIED BY LEGAL PT E 1/2 NE S20 T4 R9 .82 A
91.    
AMERICAN LAND HLDGS OF INDIANA, LLC
10166 Stanley Rd
Elberfeld
Warrick
IN
47613-9412
CERTIFIED BY LEGAL PT E 1/2 NE S20 T4 R9 37.638 A SPLIT FROM 030-2049-0740
92.    
AMERICAN LAND HLDGS OF INDIANA, LLC
10100 Stanley Rd
Elberfeld
Warrick
IN
47613-9412
CERTIFIED BY LEGAL PT E 1/2 NE S20 T4 R9 38.581 A
93.    
AMERICAN LAND HLDGS OF INDIANA, LLC
6099 Tepe Rd
Lynnville
Warrick
IN
47619-8248
CERTIFIED BY LEGAL PARCEL 2 TEPE MINOR SUB 2.50 A
94.    
AMERICAN LAND HLDGS OF INDIANA, LLC
3271 E County Road 425 S
Sullivan
Sullivan
IN
47882-7734
CERTIFIED BY LEGAL 30-7-8 1.00 ACRE PT N 1/2 NW
95.    
AMERICAN LAND HLDGS OF INDIANA, LLC
5929 E County Road 700 S
Carlisle
Sullivan
IN
47838-8150
CERTIFIED BY LEGAL PT SE SE SE 04-06-08 .450 ACRES
96.    
AMERICAN LAND HLDGS OF INDIANA, LLC
3763 E County Road 900 S
Carlisle
Sullivan
IN
47838-8075
CERTIFIED BY LEGALS, SE SE 18-6-8 39.5AC

6


97.    
AMERICAN LAND HLDGS OF INDIANA, LLC
5167 E County Road 350 S
Sullivan
Sullivan
IN
47882-7729
CERTIFIED BY LAT & LONG PROVIDED BY THE CUSTOMER ( N39°01'58" W87°18'57")
98.    
AMERICAN LAND HLDGS OF INDIANA, LLC
4428 S County Road 250 E
Sullivan
Sullivan
IN
47882
CERTIFIED BY LAT & LONG PROVIDED BY THE CUSTOMER - ( N39°01'04" W87°20'38" )
99.    
AMERICAN LAND HLDGS OF INDIANA, LLC
4997 E County Road 650 S
Carlisle
Sullivan
IN
47838-8053
CERTIFIED BY LEGALS, 5-6-8 S END SE NE 19 ACRES
100.    
AMERICAN LAND HLDGS OF INDIANA, LLC
5294 E County Road 700 S
Carlisle
Sullivan
IN
47838-8149
CERTIFIED BY LEGALS, NW COR E 1/2 NW 9-6-8 12.00 ACRES
101.    
AMERICAN LAND HLDGS OF INDIANA, LLC
4497 E County Road 800 S
Carlisle
Sullivan
IN
47838-8012
CERTIFIED BY LEGALS, 82AC, 80AC, 13.33AC, 13AC, 40AC, 14.3AC OF WHICH IS
102.    
AMERICAN LAND HLDGS OF INDIANA, LLC
6487 S County Road 325 E
Carlisle
Sullivan
IN
47838-8248
CERTIFIED BY LAT & LONG PROVIDED BY THE CUSTOMER - ( N38°59'13" W87°21'00" )
103.    
AMERICAN LAND HLDGS OF INDIANA, LLC
3441 E County Road 400 S
Carlisle
Sullivan
IN
47838
CERTIFIED BY LAT & LONG PROVIDED BY THE CUSTOMER - ( N38°59'44.7" W87°20'41.4" )
104.    
PEABODY NATURAL RESOURCES COMPANY
35 Miles North Highway 509
Grants
Mckinley
NM
87020
CERTIFIED BY CO ORDINATES 35.48416666, -107.665 NW/4 SE/4 SECTION 34, T15N, R8W MICKINLEY COUNTY, NM
105.    
PEABODY NATURAL RESOURCES COMPANY
22 Miles North Highway 509
Grants
Mckinley
NM
87020
CERTIFY BY LEGALS 35.6469444, -107.8591666 SE/4 NE/4 SECTION 2, T16N, R10W MICKINLEY COUNTY, NM
106.    
PEABODY POWDER RIVER MINING, LLC
339a Antelope Rd
Wright
Campbell
WY
82732
43.5219444, -105.273888
107.    
BTU WESTERN RESOURCES, INC.
466 Reno Rd
Gillette
Campbell
WY
82718-7080
CERTIFIED BY LEGAL 43.631666, -105.268888 SE/4 NE/4 SECTION 9, T42N, R70W CAMPBELL COUNTY, WY
108.    
PEABODY CABALLO MINING, LLC
2298 Bishop Rd
Gillette
Campbell
WY
82718-9356
CERTIFIED BY COORDINATES PROVIDED BY CUSTOMER: 44.120833, -105.345
109.    
PEABODY CABALLO MINING, LLC
12433 State Highway 59 N
Gillette
Campbell
WY
82716-1151
CERTIFIED BY LEGAL 44.40555, -105.458333


7



ANNEX A







NOTICE OF AGENT RESIGNATION, SUCCESSOR AGENT APPOINTMENT AND AGENCY TRANSFER AGREEMENT
This Notice of Agent Resignation, Successor Agent Appointment and Agency Transfer Agreement (this “Agreement”) is entered into as of September 17, 2019, by and among Goldman Sachs Bank USA (“Goldman Sachs”) as the predecessor or retiring Administrative Agent (in such capacity, the “Predecessor Agent”) under the Credit Agreement (as defined below), JPMorgan Chase Bank, N.A. (“JPMorgan Chase”) as the successor Administrative Agent (in such capacity, the “Successor Agent”), and Peabody Energy Corporation, a Delaware corporation (the “Borrower”). Defined terms in the Credit Agreement have the same meanings where used herein, unless otherwise defined or provided herein, and matters of construction shall be applied herein as established in the Credit Agreement.
RECITALS
WHEREAS, the Borrower has entered into that certain Credit Agreement, dated as of April 3, 2017, among the Borrower, the lenders party thereto from time to time (collectively, the “Lenders” and each individually, a “Lender”) and the Predecessor Agent (as amended by that certain Amendment No. 1 to Credit Agreement, dated as of September 18, 2017, that certain Amendment No. 2 to Credit Agreement, dated as of November 17, 2017, that certain Amendment No. 3 to Credit Agreement, dated as of December 8, 2017, that certain Amendment No. 4 to Credit Agreement, dated as of April 11, 2018, that certain Amendment No. 5 to Credit Agreement, dated as of June 27, 2018, that certain Technical Amendment to Credit Agreement, dated as of July 19, 2018, and that certain Amendment No. 6 to Credit Agreement, dated as of the date hereof (the “Sixth Amendment”) and as so amended or otherwise modified and in effect immediately prior to the Effective Time (as defined below), the “Credit Agreement”).
WHEREAS, pursuant to this Agreement, Goldman Sachs is delivering a notice of its resignation as Administrative Agent to the Lenders, the L/C Issuers and the Borrower, which shall become effective as of the Effective Time; and
WHEREAS, pursuant to Section 8(h) of the Sixth Amendment, the Required Lenders are appointing JPMorgan Chase as the successor Administrative Agent, and JP Morgan Chase is accepting such appointment, each effective as of the Effective Time.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the parties hereto hereby agree as follows:
1.    Agency Resignation and Appointment.
(a)    Pursuant to Section 9.06 of the Credit Agreement, Goldman Sachs, in its capacity as Administrative Agent, hereby gives notice of its resignation as Administrative Agent, effective as of the Effective Time, and as of the Effective Time, Goldman Sachs has





no further obligations under the Loan Documents in such capacity, except as specifically set forth in this Agreement.
(b)    Pursuant to Section 9.06 of the Credit Agreement and Section 8(h) of the Sixth Amendment, (A) the Required Lenders are appointing JPMorgan Chase as the successor Administrative Agent under the Credit Agreement and the other Loan Documents as of the Effective Time, and (B) the Borrower approves of the appointment of JPMorgan Chase as the Successor Agent.
(c)    It is acknowledged and confirmed that, as of the Effective Time:
(A) (i) JPMorgan Chase accepts its appointment as the Successor Agent; (ii) JPMorgan Chase shall bear no liability or responsibility for any actions taken or omitted to be taken by Goldman Sachs while it served as the Administrative Agent; and (iii) Goldman Sachs shall bear no liability or responsibility for any actions taken or omitted to be taken by JPMorgan Chase while serving as the Administrative Agent, and each party hereto agrees to execute any documentation and to take such other actions as may reasonably be necessary to evidence the resignation and appointments described herein, in each case, at the Borrower’s expense;
(B) (i) the Successor Agent succeeds to and becomes vested with all of the rights, powers, privileges and duties of the Predecessor Administrative Agent under the Credit Agreement and the other Loan Documents and (ii) the Predecessor Agent is discharged from all of its duties and obligations under the Credit Agreement or under the other Loan Documents, in each case, except as specifically set forth in this Agreement, and as of the Effective Time; and
(C) the provisions of Article XIX and Section 10.04 of the Credit Agreement, and any other reimbursement, indemnity or exculpatory provision set forth in any Loan Document for the benefit of any Agent, any sub-agent thereof or their respective Related Parties and any other provision set forth in any Loan Document that by its terms expressly survives the termination of such Loan Document for the benefit of any Agent, any sub-agent thereof or their respective Related Parties (such provisions collectively, the “Agent Provisions”) shall, in each case, (i) continue in effect for the benefit of the Predecessor Agent, its sub agents and their respective Related Parties (collectively, the “Indemnified Goldman Sachs Parties”) in respect of any actions taken or omitted to be taken by any of them, whether taken before, on or after the date of this Agreement, while it or they were acting in such capacities or any actions taken or omitted to be taken by any of them in connection with this Agreement or any of the transactions contemplated hereby and in respect of all liabilities, losses, damages, costs or expenses arising from or relating to the Loan Documents (whether now existing or hereinafter arising) and all other Indemnified Liabilities, and references in such provisions to any Agent shall be deemed to include Goldman Sachs as predecessor Administrative Agent, and (ii) inure to the benefit of the Indemnified Goldman Sachs Parties, notwithstanding the resignation of the Predecessor Agent as of the Effective Time, and

3


references in Article XIX and Section 10.04 of the Credit Agreement to the Administrative Agent as predecessor or retired Administrative Agent.
(d)    The Borrower and the Successor Agent hereby agree that, for purposes of the acknowledgement and agreement contained in paragraph (C) of Section 1(c) of this Agreement regarding the continuing benefit of the Loan Documents for the Indemnified Goldman Sachs Parties, references to Article XIX and Section 10.04 of the Credit Agreement, including the defined terms used in such provisions, shall be deemed to refer to such provisions or defined terms in the Credit Agreement as they exist on the Effective Time, without giving effect to any amendment, waiver or other modification thereof after the Effective Time that is in any manner adverse to the Indemnified Goldman Sachs Parties.
(e)    It is acknowledged and agreed by each of the parties hereto that JPMorgan Chase, in succeeding to the position of the Administrative Agent, (i) has undertaken no analysis of the Loan Documents or the Collateral and (ii) has made no determination as to (x) the validity, enforceability, effectiveness or priority of any Liens granted or purported to be granted pursuant to the Loan Documents or (y) the accuracy or sufficiency of the documents, filings, recordings and other actions taken to create, perfect or maintain the existence, perfection or priority of the Liens granted or purported to be granted pursuant to the Loan Documents. JPMorgan Chase shall be entitled to assume that, as of the date hereof, that all Liens purported to be granted pursuant to the Loan Documents are valid and perfected Liens having the priority intended by the Lenders and the Loan Documents.
(f)    The Borrower expressly agrees and acknowledges that the Successor Agent is not assuming any liability (i) under or related to the Loan Documents prior to the Effective Time and (ii) for any and all claims under or related to the Loan Documents that may have arisen or accrued prior to the Effective Time. The Borrower, with respect to its and the other Loan Parties' applicable indemnification obligations under the Loan Documents, expressly agrees and confirms that the Successor Agent’s right to indemnification, as set forth in the Loan Documents, shall apply with respect to any and all losses, claims, costs and expenses that the Successor Agent suffers, incurs or is threatened with relating to actions taken or omitted by the Predecessor Agent prior to the Effective Time.
(g)    It is acknowledged and agreed by the Successor Agent that the $3,500 fee otherwise owing to the Administrative Agent under the Credit Agreement for trades booked through the Predecessor Agent prior to the Effective Date but settled by the Successor Agent after the Effective Date is hereby waived by the Successor Agent.
2.    Accounts. As of the Effective Time, the Borrower hereby agrees that any payment required to be made to the Successor Agent (whether for its own account or for the account of the Lenders) under the Credit Agreement shall be made pursuant to wire instructions provided by the Successor Agent to the Lenders and the Borrower from time to time. 
3.    Representations and Warranties.

4


(a)    Each of Goldman Sachs, JPMorgan Chase and the Borrower hereby represents and warrants on and as of the date hereof and on and as of the Effective Time that (i) it is legally authorized to enter into this Agreement and perform its obligations hereunder, (ii) it has duly executed and delivered this Agreement, and (iii) this Agreement is a legal, valid and binding agreement of it, enforceable against it in accordance with its terms, except as may be limited by the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or limiting the rights or remedies of creditors or by general equitable principles relating to enforceability (whether enforcement is sought in equity or at law).
(b)    The Predecessor Agent hereby represents and warrants that:
a.
To the best of its knowledge, as of September 17, 2019, the Loans (and accrued and unpaid interest thereon), Incremental Revolving Commitments, accrued and unpaid commitment fees and accrued and unpaid Letter of Credit fees were held by or owing to each Lender in the amounts set forth on Schedule 2 hereto.
b.
It has not consented to any assignments of any Loans or Incremental Revolving Commitments since September 10, 2019.
c.
The Predecessor Agent has not sent any notice of Default or Event of Default under the Credit Agreement or any notice or letter to any Loan Party in connection with any Event of Default under the Credit Agreement, including in connection with the reservation of the Predecessor Agent’s rights under the Credit Agreement and the other Loan Documents.
(c)    The Borrower hereby represents and warrants that to its knowledge
a.
Schedule 1 hereto sets forth each Loan Document to which the Predecessor Agent (in its capacity as Administrative Agent and not in any other capacity) and the Borrower are parties.
b.
As of the Effective Time, there have been no amendments, supplements or consents to the Loan Documents to which the Predecessor Agent (in its capacity as Administrative Agent and not in any other capacity) and the Borrower are parties, except as otherwise provided to the Successor Agent.
c.
No Loan Party has sent a notice to the Predecessor Agent in respect of a Default or Event of Default that has occurred and is continuing.
d.
Set forth on Schedule 3 hereto is a list of (x) each Letter of Credit outstanding as of the Effective Time and (y) each Hedge Bank as of the Effective Time.
(d)    This Agreement is hereby made without representation or warranty of any kind, nature or description except as specified in paragraphs (a), (b) and (c) of this Section 3. Without limiting the generality of the foregoing, JPMorgan Chase acknowledges that Goldman Sachs has not made any representation or warranty as to (i) any recital, statement,

5


information, warranty or representation made or delivered by any Person in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) any Loan Party, any Obligations, any Collateral or the legality, validity, sufficiency, collectability, enforceability, effectiveness or genuineness of any Loan Document, any Obligations or any other agreement, instrument or document, (v) the validity, extent, creation, perfection or priority of any Liens on the Collateral or the genuineness, enforceability, collectability, value, sufficiency, location or existence of any Collateral, (vi) the satisfaction of any condition set forth in Article IV of the Credit Agreement, (vii) the assets, liabilities, condition (financial or otherwise), results of operations, business, creditworthiness or legal status of any Loan Party, or (viii) the satisfaction of any condition to the effectiveness of this Agreement. Notwithstanding anything to the contrary in this Agreement or any other Credit Document, any security interests, Liens and Collateral assigned or transferred by the Predecessor Agent to the Successor Agent under or pursuant to this Agreement and any other Loan Document shall be transferred as-is, where is and without representation or warranty of any kind, whether express or implied, and without recourse to the Predecessor Agent. The Successor Agent acknowledges that it has, independently and without reliance on the Predecessor Agent and its Related Parties, made its own decision to enter into this Agreement and the transactions contemplated hereby.
4.    Conditions Precedent to Effectiveness. For purposes of this Agreement, the term “Effective Time” means such time immediately following the effectiveness of the Sixth Amendment on September 17, 2019 at which all of the following conditions have been satisfied:
(a)      Each of the Borrower, the Predecessor Agent and the Successor Agent shall have executed and delivered this Agreement;

(b)    the Successor Agent shall have received a copy of the Register;

(c)     the Successor Agent shall have received copies of all tax forms and administrative questionnaires which have been delivered by the Lenders to the Predecessor Agent;

(d) (A) the Predecessor Agent shall have received fees and expenses of its counsel required to be reimbursed or paid by the Borrower on or prior to the Effective Time under the Credit Agreement or under any other Loan Document in an amount of $95,000;

(B) the funds to satisfy the above clause (d)(A) should be sent by federal funds wire transfer to:

6


Bank Name:
Citibank N.A., One Penn’s Way, New Castle, DE 19720
ABA Number:
XXXXXXXX
SWIFT:
XXXXXXXX
Account No.:
XXXXXXXX
Account Name:
Latham & Watkins LLP
Reference:
Matter No.: XXXXXXXX
 
5.    Fees and Expenses. Each of the parties hereto hereby acknowledges and agrees that all provisions of the Credit Agreement and the other Loan Documents providing for the payment of fees and expenses of, and providing for indemnities for the benefit of, the Administrative Agent shall remain in full force and effect for the benefit of the Successor Agent. In addition, the Borrower agrees to pay all reasonable out of pocket costs and expenses of the Successor Agent and the Predecessor Agent (including, without limitation, reasonable legal fees) incurred by them in connection with the negotiation, preparation, execution and delivery of this Agreement, any related documents or otherwise provided for under the Loan Documents.
6.    Further Assurances.
(a)    Without limiting their obligations in any way under any of the Loan Documents, the Borrower (i) reaffirms and acknowledges its obligations to the Successor Agent with respect to the Loan Documents and (ii) agrees to (x) execute and deliver all documents as are reasonably requested by the Successor Agent to transfer the rights and privileges of the Predecessor Agent under the Loan Documents to the Successor Agent, and (y) take all actions reasonably requested by the Successor Agent to facilitate the transfer of information to the Successor Agent in connection with the Loan Documents at the Borrower’s sole cost and expense.
(b)    The Predecessor Agent agrees that, on and after the Effective Time, in each case at the Borrower’s expense, the Predecessor Agent shall take such actions as may be reasonably requested by the Successor Agent from time to time in order to effect the matters covered hereby; provided that any document, instrument or agreement to be furnished or executed by, or other action to be taken by, the Predecessor Agent shall be reasonably satisfactory to it, and the Predecessor Agent shall be reasonably satisfied that the delivery of any information requested of it would not breach any confidentiality restrictions binding on it.
7.    Return of Payments.

7


(a)    In the event that, after the Effective Time, the Predecessor Agent receives any principal, interest or other amount owing to any Lender or the Successor Agent under the Credit Agreement or any other Loan Document, the Predecessor Agent agrees that such payment shall be held in trust for the Successor Agent, and the Predecessor Agent shall promptly return without setoff or counterclaim such payment to the Successor Agent, as applicable, for payment to the Person entitled thereto, in each case, at the Borrower’s expense.
(b)    In the event that, after the Effective Time, the Successor Agent receives any principal, interest or other amount owing to Goldman Sachs (in its capacity as the Predecessor Agent) under the Credit Agreement or any other Loan Document, the Successor Agent agrees that such payment shall be held in trust for Goldman Sachs, and the Successor Agent shall promptly return without setoff or counterclaim such payment to Goldman Sachs.
(c)     Subject to paragraph (C) of Section 1(c) of this Agreement, but notwithstanding any other provision herein or in any other Loan Document to the contrary, on and after the Effective Time, all payments of principal, interest, fees and other Obligations payable by any Loan Party under the Loan Documents to the Administrative Agent shall be payable to JPMorgan Chase, as Successor Agent, as and when such amounts become due and payable pursuant to the Loan Documents.
8.    Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the parties hereto.
9.    Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all of which when taken together shall constitute a single instrument. Delivery of an executed counterpart of a signature page of this Agreement by facsimile transmission or by email in Adobe “.pdf” format shall be effective as delivery of a manually executed counterpart hereof.
10.    Headings. The headings of this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
11.    Interpretation. This Agreement is a Loan Document for the purposes of the Credit Agreement.
12.    APPLICABLE LAW. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT AND ANY DISPUTE ARISING OUT OF THE RELATIONSHIP BETWEEN THE PARTIES HERETO, WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK BUT EXCLUDING ANY PRINCIPLES OF CONFLICTS OF LAW OR OTHER RULE OF LAW THAT WOULD CAUSE THE APPLICATION OF THE LAW OF ANY JURISDICTION OTHER THAN THE LAWS OF THE STATE OF NEW YORK.

8


13.    WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. EACH PARTY HERETO HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
14.    Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be effective to the extent of such prohibition of unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
15.    Entire Agreement. This Agreement constitutes the entire contract among the parties relating to the subject matter hereof and supersedes any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. This Agreement may not be amended except by an instrument in writing signed by each of the parties hereto.

9


16.    Entitlement to Rely. Successor Agent shall be entitled to conclusively rely upon, and shall not incur any liability for relying upon, the records and other information supplied to it by the Predecessor Agent, the Borrower, any Lender or any of their respective Affiliates, and in no event shall the Successor Agent have any liability in respect of the calculations, determinations or distributions of funds made by the Lenders, the Borrower or the Predecessor Agent prior to the effectiveness of this Agreement, nor shall the Successor Agent have any liability after the effectiveness of this Agreement to the extent that any calculation, determination or distribution of funds is made by it, in good faith, based in whole or in part on information supplied to it by the Predecessor Agent, any Lender, the Borrower or any of their respective Affiliates in connection with the transfer of the role of administrative agent under the Loan Documents from Goldman Sachs to JPMorgan Chase. It is the intention and understanding of the parties hereto that any exchange of information under this Agreement that is otherwise protected against disclosure by privilege, doctrine or rule of confidentiality (such information, “Privileged Information”), whether before or after the Effective Time (i) shall not waive any applicable privilege, doctrine or rule of protection from disclosure, (ii) shall not diminish the confidentiality of the Privileged Information and (iii) shall not be asserted as a waiver of any such privilege, doctrine or rule by the Predecessor Agent or the Successor Agent.
[Signature pages follow]


10


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above.
GOLDMAN SACHS BANK USA, as Predecessor Agent
By:                        
Name:    
Title:    


[Signature Page to
Notice of Agent Resignation, Successor Agent Appointment and Agency Transfer Agreement]



JPMORGAN CHASE BANK, N.A., as Successor Agent
By:                        
Name:
Title:

[Signature Page to
Notice of Agent Resignation, Successor Agent Appointment and Agency Transfer Agreement]



BORROWER
PEABODY ENERGY CORPORATION
By:                    
Name:                     
Title:                     


[Signature Page to
Notice of Agent Resignation, Successor Agent Appointment and Agency Transfer Agreement]


Schedule 1
Loan Documents


1.
Credit Agreement, and all amendments thereto
2.
Guaranty Agreement, including joinders
3.
Collateral Trust Agreement
4.
Master Consent Agreements






Schedule 2

LOANS AND LENDER LIST

(attached)







Schedule 3
OUTSTANDING LETTERS OF CREDIT AND HEDGE BANKS

EXISTING LCS

LC Number
Issuing Bank
Beneficiary
SLC00005194
Commerce Bank
Westchester Fire Insurance Company
SLC00005200
Commerce Bank
Travelers Casualty Insurance Company of America
10000643
Goldman Sachs
Travelers Casualty Insurance Company of America
10000641
Goldman Sachs
Bond Safeguard Insurance Company and/or
Lexon Insurance Company,
Ironshore Specialty Insurance Company,
Ironshore Indemnity, Inc.
40000032
Goldman Sachs
RGGS Land and Minerals Ltd., L.P.
NUSCGS002288
JP Morgan
Atlantic Specialty Insurance Company
NUSCGS003145
JP Morgan
Old Republic Insurance Company
NUSCGS003146
JP Morgan
Old Republic Insurance Company
NUSCGS003198
JP Morgan
Rockwood Casualty Insurance Company


HEDGE BANKS

Contracting Name
Bank Name
JPMORGAN CHASE BANK, N.A.
J.P. Morgan
CREDIT SUISSE INTERNATIONAL
Credit Suisse
J. ARON & COMPANY LLC
Goldman Sachs
DEUTSCHE BANK AG, LONDON BRANCH
Deutsche Bank
BANK OF MONTREAL
BMO
BANK OF AMERICA, N.A.
Bank of America
MACQUARIE BANK LIMITED
Macquaire
REGIONS BANK
Regions
COMMERCE BANK
Commerce









ANNEX B






AMENDMENT NO. 7 TO CREDIT AGREEMENT
This AMENDMENT NO. 7 TO CREDIT AGREEMENT, dated as of September 17, 2019 (this “Amendment”), among PEABODY ENERGY CORPORATION, a Delaware corporation (the “Borrower”), the other Reaffirming Parties (as defined below) party hereto, JPMORGAN CHASE BANK, N.A., as administrative agent (as successor to Goldman Sachs Bank USA in its capacity as administrative agent) (in such capacity, the “Administrative Agent”), Bank of America, N.A., as a 2019 Incremental Revolving Lender (the “2019 Incremental Revolving Lender”), each undersigned Lender with Refinancing Revolving Commitments (as defined below) (each, a “Refinancing Revolving Lender” and collectively, the “Refinancing Revolving Lenders”) and the other Lenders party hereto (such Lenders, together with the Refinancing Revolving Lenders party hereto, collectively constituting the Required Lenders).
PRELIMINARY STATEMENTS
WHEREAS, reference is made to that certain Credit Agreement, dated as of April 3, 2017, among the Borrower, the Administrative Agent and the lenders party thereto from time to time (as amended by that certain Amendment No. 1 to Credit Agreement, dated as of September 18, 2017, that certain Amendment No. 2 to Credit Agreement, dated as of November 17, 2017, that certain Amendment No. 3 to Credit Agreement, dated as of December 8, 2017, that certain Amendment No. 4 to Credit Agreement, dated as of April 11, 2018, that certain Amendment No. 5 to Credit Agreement, dated as of June 27, 2018, the certain Technical Amendment to Credit Agreement, dated as of July 19, 2018, and that certain Amendment No. 6 to Credit Agreement, dated as of September 17, 2019, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to, but not including, the date hereof, the “Existing Credit Agreement” and the Existing Credit Agreement as amended pursuant hereto, including the Refinancing Amendments (as defined below) (and including all schedules thereto, in each case which schedules shall be in form and substance satisfactory to Administrative Agent, the “Credit Agreement”);
WHEREAS, pursuant to Section 2.15(a) of the Credit Agreement, the Borrower has requested to increase the principal amount of the 2019 Incremental Revolving Commitments (as defined in the Sixth Amendment) (such increase, the “Additional 2019 Incremental Revolving Commitment”) (the 2019 Incremental Revolving Commitments (as defined in the Sixth Amendment), as increased by the Additional 2019 Incremental Revolving Commitment hereunder, collectively, the “2019 Incremental Revolving Commitments”) by an aggregate principal amount of $20,000,000 pursuant to clause (b)(i) of the definition of Incremental Debt Cap, to be provided by the 2019 Incremental Revolving Lender party hereto and effective on the Seventh Amendment Effective Date (as defined below) pursuant to the terms hereof and in the Sixth Amendment and the Amended Credit Agreement (as defined in the Sixth Amendment);
WHEREAS, the 2019 Incremental Revolving Lender party hereto is prepared to provide its 2019 Incremental Revolving Commitments on the terms set forth in the Sixth Amendment and the Amended Credit Agreement in an amount equal to its 2019 Incremental Revolving Commitment set forth on Schedule 1 hereto, subject to the terms and conditions set forth herein and in the Amended Credit Agreement;
WHEREAS, upon the effectiveness of the Additional 2019 Incremental Revolving Commitment pursuant hereto, the Borrower hereby requests pursuant to Section 2.16 the Existing Credit Agreement, and the lenders party hereto as Refinancing Revolving Lenders have agreed to provide, a Refinancing Revolving Facility in an aggregate principal amount of $540,000,000 (the “Refinancing Revolving Commitments”), subject to the terms and conditions set forth herein and in the Credit





Agreement, which will replace and refinance in full all existing Revolving Commitments of such Refinancing Revolving Lenders under the Revolving Facility outstanding under the Existing Credit Agreement immediately prior to the effectiveness of the Refinancing Amendments (the “2017 Incremental Revolving Facility”);
WHEREAS, each Refinancing Revolving Lender party hereto is prepared to provide the Refinancing Revolving Commitments in an amount equal to its Refinancing Revolving Commitment set forth on Schedule 1 hereto, subject to the terms and conditions set forth herein and in the Credit Agreement;
WHEREAS, as contemplated by Section 2.16(e) of the Existing Credit Agreement, subject to the satisfaction of the conditions precedent set forth in Section 5 hereof, each of the Administrative Agent, the Refinancing Revolving Lenders party hereto and the Borrower have agreed to amend certain terms of the Existing Credit Agreement as set forth in Section 4 hereof (the “Refinancing Amendments”) in order to give effect to the Refinancing Revolving Commitments provided hereunder;
WHEREAS, each Existing Letter of Credit set forth in Schedule 1.01(g) annexed to the Credit Agreement shall be deemed to be a Letter of Credit pursuant to the Revolving Facility in effect on and after the Seventh Amendment Effective Date;
WHEREAS, each Loan Party party hereto and Gibraltar Holdings (collectively, the “Reaffirming Parties”, and each, a “Reaffirming Party”) expects to realize substantial direct and indirect benefits as a result of this Amendment becoming effective and the consummation of the transactions contemplated hereby and agrees to reaffirm its obligations under the Credit Agreement, the Security Documents, and the other Loan Documents to which it is a party;
NOW, THEREFORE, in consideration of the undertakings set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 9.    DEFINED TERMS; INTERPRETATION; ETC. Capitalized terms used and not defined herein shall have the meanings assigned to such terms in the Credit Agreement. This Amendment is a “Loan Document” (as defined in the Existing Credit Agreement and the Credit Agreement).
SECTION 10.    ADDITIONAL 2019 INCREMENTAL REVOLVING COMMITMENT.
(b)    Pursuant to Section 2.15 of the Credit Agreement, and subject solely to the satisfaction of the conditions precedent set forth in Section 5 hereof, on and as of the Seventh Amendment Effective Date:

(a)     The 2019 Incremental Revolving Lender party hereto hereby severally and not jointly agrees to commit to provide its 2019 Incremental Revolving Commitment set forth on Schedule 1. Such Additional 2019 Incremental Revolving Commitments shall be an increase to the Revolving Commitments of the Lender under the 2017 Incremental Revolving Facility.
(b)     The 2019 Incremental Revolving Lender party hereto hereby (i) represents and warrants that (A) it has full power and authority, and has taken all action necessary, to execute and deliver this Amendment and to consummate the transactions contemplated hereby and in the Amended Credit Agreement, (B) it is an existing Lender under the Credit Agreement, (C) from and after the Seventh Amendment Effective Date, it shall be bound by the provisions of the Amended Credit Agreement, (D) it is sophisticated with respect to decisions to acquire assets of the type represented by the 2019 Incremental Revolving Commitments and the 2019 Incremental Revolving Loans and either it, or the Person

2



exercising discretion in making its decision to commit to provide its 2019 Incremental Revolving Commitment, is experienced in committing to commitments and loans of such type, (E) it has received a copy of the Credit Agreement, the Sixth Amendment and the other Loan Documents, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 6.01 of the Amended Credit Agreement, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Seventh Amendment and to commit to provide its respective 2019 Incremental Revolving Commitment, (F) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Seventh Amendment and to commit to provide its respective 2019 Incremental Revolving Commitment, and (G) it has provided Borrower and the Administrative Agent any documentation required to be delivered by it pursuant to the terms of the Amended Credit Agreement (including Section 3.01(e) of the Amended Credit Agreement), duly completed and executed by the 2019 Incremental Revolving Lender; (ii) agrees that (A) it will, independently and without reliance on either the Administrative Agent or any other 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 the Loan Documents, and (B) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender; and (iii) appoints and authorizes the Administrative Agent and the Collateral Trustee to take such action as agent on its behalf and to exercise such powers under the Amended Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent and Collateral Trustee, as the case may be, by the terms thereof, together with such powers as are reasonably incidental thereto.
(c)     On the Seventh Amendment Effective Date, each of the existing Incremental Revolving Lenders under the Amended Credit Agreement is hereby deemed to assign to the 2019 Incremental Revolving Lender party hereto, and the 2019 Incremental Revolving Lender party hereto is hereby deemed to purchase from each of the existing Incremental Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Incremental Revolving Loans and participations in Letters of Credit outstanding on the Seventh Amendment Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Incremental Revolving Loans and participations in Letters of Credit will be held by existing Incremental Revolving Lenders and 2019 Incremental Revolving Lender party hereto ratably in accordance with their Incremental Revolving Commitments after giving effect to the Additional 2019 Incremental Revolving Commitments to the existing Incremental Revolving Commitments.
(d)     The 2019 Incremental Revolving Lender party hereto, the Administrative Agent and the Reaffirming Parties party hereto agree that this Seventh Amendment shall constitute an “Incremental Facility Request” and an “Incremental Amendment” pursuant to and in accordance with Section 2.15 of the Credit Agreement and a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents. The Incremental Facility Effective Date in respect of the Additional 2019 Incremental Revolving Commitment shall be the Seventh Amendment Effective Date.
(e)     On the Seventh Amendment Effective Date, the Administrative Agent will record in the Register the Additional 2019 Incremental Revolving Commitment made hereunder by the 2019 Incremental Revolving Lender party hereto as “Incremental Revolving Commitments” under the 2017 Incremental Revolving Facility.
SECTION 11.    REFINANCING REVOLVING FACILITY.
(a)     Following the effectiveness of the Additional 2019 Incremental Revolving Commitment, each Refinancing Revolving Lender hereby severally commits to provide its respective Refinancing

3



Revolving Commitments set forth opposite such Refinancing Revolving Lender’s name on Schedule I hereto and to make its Refinancing Revolving Loans, on the terms and subject to the conditions set forth herein and the Credit Agreement:
(b)     By executing and delivering this Amendment, each Refinancing Revolving Lender (including in its capacity as an L/C Issuer, if applicable) hereby (i) represents and warrants that (A) it has full power and authority, and has taken all action necessary, to execute and deliver this Amendment and to consummate the transactions contemplated hereby and in the Credit Agreement, (B) from and after the Seventh Amendment Effective Date, it shall be bound by the provisions of the Credit Agreement and, to the extent of its Refinancing Revolving Commitment, shall have the obligations of a Lender thereunder, (C) it is sophisticated with respect to decisions to acquire assets of the type represented by the Refinancing Revolving Commitments and the Revolving Loans to be incurred thereunder (such Revolving Loans, the “Refinancing Revolving Loans”) and either it, or the Person exercising discretion in making its decision to commit to provide its Refinancing Revolving Commitment, is experienced in committing to commitments and loans of such type, (D) it has received a copy of the Existing Credit Agreement, this Amendment and the other Loan Documents, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 6.01 of the Existing Credit Agreement and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Amendment and to commit to provide its respective Refinancing Revolving Commitment, and (E) it has, independently and without reliance upon Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Amendment and to commit to provide its respective Refinancing Revolving Commitment; (ii) agrees that (A) it will, independently and without reliance on the Administrative Agent or any other 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 the Loan Documents, and (B) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender; and (iii) appoints and authorizes the Administrative Agent and the Collateral Trustee to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Loan Documents as are delegated to Administrative Agent and Collateral Trustee, as the case may be, by the terms thereof, together with such powers as are reasonably incidental thereto.
(c)     Status as a Lender; Status as Refinancing Revolving Loans. Each Loan Party and each Refinancing Revolving Lender acknowledges and agrees that (i) upon its execution of this Amendment and the occurrence of the Seventh Amendment Effective Date, each Refinancing Revolving Lender shall continue to be a “Lender” under, and for all purposes of, the Credit Agreement and the other Loan Documents, and shall be subject to and bound by the terms thereof, and shall perform all the obligations of and shall have all rights of a Lender thereunder; (ii) notwithstanding anything to the contrary in the Credit Agreement or any Loan Document, each Refinancing Revolving Commitment shall be deemed (A) a “Revolving Commitment” under the “Revolving Facility”, and (B) except as set forth herein with respect to the Revolving Facility Maturity Date and the Applicable Rate, to have terms identical to the 2017 Incremental Revolving Facility and form part of the “Revolving Facility”, in each case, as the applicable context requires, under, and for all purposes of, the Credit Agreement and the other Loan Documents, with such terms and conditions applicable thereto in each case as specified in the Credit Agreement or such Loan Document, unless otherwise separately and specifically stated therefor in this Amendment; (iii) for purposes of Section 10.1 of the Credit Agreement, the Refinancing Revolving Loans shall be considered collectively with all other Loans for purposes of making determinations of “Required Lenders” (or for any consent requiring the consent of affected Lenders or of all of the Lenders) and shall be treated as Revolving Loans for all other purposes thereunder in accordance with the Credit Agreement; and (iv) the definition “Obligations” shall be deemed to include all unpaid principal of and accrued and unpaid interest on all Refinancing Revolving Loans. For the avoidance of doubt, each party hereto

4



acknowledges and agrees that it is the intention of such party that except as otherwise separately and specifically stated therefor in this Amendment or the Credit Agreement, the terms and conditions applicable to, and the provisions in the Credit Agreement and the other Loan Documents relating to, the Refinancing Revolving Loans shall be identical to the terms and conditions applicable to, and the provisions in the Credit Agreement and the other Loan Documents relating to, the Revolving Loans incurred under the Revolving Facility.
SECTION 12.    AMENDMENTS TO CREDIT AGREEMENT. PURSUANT TO AND IN ACCORDANCE WITH SECTION 10.01 OF THE EXISTING CREDIT AGREEMENT, EFFECTIVE AS OF THE AMENDMENT EFFECTIVE TIME, EACH OF THE PARTIES HERETO AGREE THAT THE EXISTING CREDIT AGREEMENT SHALL BE AMENDED TO DELETE THE STRICKEN TEXT (INDICATED TEXTUALLY IN THE SAME MANNER AS THE FOLLOWING EXAMPLE: STRICKEN TEXT) AND TO ADD THE DOUBLE-UNDERLINED TEXT (INDICATED TEXTUALLY IN THE SAME MANNER AS THE FOLLOWING EXAMPLE: DOUBLE-UNDERLINED TEXT) AS SET FORTH IN THE DOCUMENT ATTACHED AS EXHIBIT A HERETO.
SECTION 13.    CONDITIONS PRECEDENT. THE REFINANCING AMENDMENTS AND THE OBLIGATIONS OF THE (I) 2019 INCREMENTAL REVOLVING LENDER PARTY HERETO TO MAKE ITS ADDITIONAL 2019 INCREMENTAL REVOLVING COMMITMENT, AND (II) THEREAFTER, THE REFINANCING REVOLVING LENDERS TO PROVIDE THE REFINANCING REVOLVING COMMITMENTS AND THE AMENDMENTS SET FORTH IN SECTION 3 HEREOF SHALL BECOME EFFECTIVE ON THE DATE (THE “SEVENTH AMENDMENT EFFECTIVE DATE”) AND AT THE TIME (THE “AMENDMENT EFFECTIVE TIME”) ON AND AT WHICH THE FOLLOWING CONDITIONS PRECEDENTS ARE SATISFIED OR WAIVED IN ACCORDANCE WITH SUCH SECTION:
a.    The Administrative Agent’s receipt of the following, each of which shall be:
i.executed counterparts of (a) this Amendment from each of the parties thereto, (b) an amended and restated Guaranty from each of the Loan Parties, (c) the Additional Secured Debt Designation (as defined in the Collateral Trust Agreement) from the Borrower and acknowledged by the Collateral Trustee, and (d) the Amendment No. 2 to Priority Lien Pledge and Security Agreement, dated as of the date hereof, from each of the Loan Parties, Gibraltar Holdings and the Collateral Trustee;
ii.such certificates of resolutions or other action, incumbency certificates and/or other certificates of duly authorized officers of each Loan Party and each Restricted Subsidiary party to a Loan Document, in each case, as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each officer of each Loan Party or Restricted Subsidiary executing the Loan Documents to which each Loan Party or Restricted Subsidiary is a party;
iii.such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;

5



iv.the executed opinion of Jones Day, counsel to the Borrower and special New York counsel to the other Loan Parties, addressed to the Administrative Agent, the Collateral Trustee and each Lender;
v.the executed opinion of Bingham Greenebaum Doll LLP, special Indiana counsel to the Loan Parties, addressed to the Administrative Agent, the Collateral Trustee and each Lender;
vi.a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in clauses (b) and (c) of this Section 4 have been satisfied;
vii.a solvency certificate from the chief financial officer of the Borrower in the form of Exhibit K to the Credit Agreement, which demonstrates that the Borrower and its Restricted Subsidiaries on a consolidated basis, are, and after giving effect to the transactions set forth in this Amendment, will be, Solvent;
b.    no Default or Event of Default shall exist, or would result immediately, from transactions contemplated hereby on the Seventh Amendment Effective Date;
c.    the representations and warranties of (i) the Borrower contained in Article V of the Credit Agreement and (ii) each Loan Party contained in each other Loan Document shall be true and correct in all material respects on and as of the Seventh Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, and except that the representations and warranties contained in subsection (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clause (b) of Section 6.01 of the Credit Agreement; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality or by a reference to a Material Adverse Effect in the text thereof;
d.    Any fees required to be paid on or before the Seventh Amendment Effective Date to the Agents, the Arrangers or the Lenders under this Amendment, the Credit Agreement, the Fee Letters or otherwise in connection with the Facilities (including the fees to be paid to the Arrangers in respect of each of their Revolving Commitments under the 2019 Refinancing Revolving Facility as set forth in the applicable Fee Letters) shall have been paid and, unless waived by the Agents, the Arrangers or the Lenders, as applicable, to the extent invoiced at least three Business Days prior to the Seventh Amendment Effective Date, the Borrower shall have paid all reasonable and documented out-of-pocket costs and expenses of the Agents, Arrangers and the Lenders (including the reasonable and documented fees and expenses of one counsel to the Agents and the Lenders, plus such additional amounts of such reasonable and documented fees and expenses (including filing fees in respect of collateral) as shall constitute its reasonable estimate of such fees and expenses incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Agents));
e.    the Arrangers and the Agents shall have received at least three business days prior to the Seventh Amendment Effective Date (i) all documentation and other information required by regulatory authorities with respect to the Borrower and the other Loan Parties under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership

6



Certification in relation to the Borrower, in each case, that has been requested by the Arrangers or the Agents at least ten Business Days prior to the Seventh Amendment Effective Date.
For purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Seventh Amendment Effective Date specifying its objection thereto.
SECTION 14.    REAFFIRMATION.
(a)    To induce the Lenders and the Administrative Agent to enter into this Amendment, each of the Loan Parties and Gibraltar Holdings hereby acknowledges and reaffirms its obligations under each Loan Document to which it is a party, including, without limitation, any grant, pledge or collateral assignment of a lien or security interest, as applicable, contained therein, in each case as amended, restated, amended and restated, supplemented or otherwise modified prior to or as of the date hereof . The Borrower acknowledges and agrees that each of the Loan Documents to which it is a party or otherwise bound shall continue in full force and effect and that all of its obligations thereunder shall not be impaired or limited by the execution or effectiveness of this Amendment.
(b)    In furtherance of the foregoing clause (a), Gibraltar Holdings and each of the Loan Parties that is party to any Security Document, in its capacity as a “grantor”, “pledgor” or other similar capacity under such Security Document (in such capacity, each a “Reaffirming Party”), hereby acknowledges that it has reviewed and consents to the terms and conditions of this Amendment and the transactions contemplated hereby. In addition, each Reaffirming Party reaffirms the security interests granted by such Reaffirming Party under the terms and conditions of the Security Documents (in each case, to the extent a party thereto) to secure the Secured Obligations and agrees that such security interests remain in full force and effect and are hereby ratified, reaffirmed and confirmed. Each Reaffirming Party hereby (i) confirms that each Security Document to which it is a party or is otherwise bound and all Collateral encumbered thereby will continue to secure, to the fullest extent possible in accordance with the Security Documents, the payment and performance of the Secured Obligations, including without limitation the payment and performance of all such applicable Secured Obligations that are joint and several obligations of each Guarantor and each Reaffirming Party now or hereafter existing, in each case pursuant to the terms of the Security Documents such Reaffirming Party is a party to, (ii) confirms its respective grant to the Collateral Trustee for the benefit of the Secured Parties of the security interest in and continuing Lien on all of such Reaffirming Party’s right, title and interest in, to and under all Collateral to which such Reaffirming Party granted a security interest in and a continuing Lien on pursuant to the terms of the Security Documents to which such Reaffirming Party is party to, in each case whether now owned or existing or hereafter acquired or arising and wherever located, as collateral security for the prompt and complete payment and performance in full when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise, of all applicable Secured Obligations, subject to the terms contained in the applicable Loan Documents and (iii) confirms its respective pledges, grants of security interests and other obligations, as applicable, under and subject to the terms of each of the Security Documents to which it is a party.
SECTION 15.    MISCELLANEOUS PROVISIONS.
(a)    Governing Law; Submission to Jurisdiction, Consent to Service of Process, Waiver of Jury Trial, Etc. Sections 10.14 and 10.15 of the Existing Credit Agreement are incorporated by reference herein as if such Sections appeared herein, mutatis mutandis.

7



(b)    Severability. Section 10.12 of the Existing Credit Agreement is incorporated by reference herein as if such Section appeared herein, mutatis mutandis.
(c)    Counterparts; Headings. This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Amendment by telecopy or other electronic imaging means (i.e., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Amendment. Article and Section headings used herein are included for convenience of reference only, shall not constitute a part hereof, shall not be given any substantive effect and shall not affect the interpretation of this Amendment.
(d)    Third Party Beneficiary. The Collateral Trustee shall be an express third party beneficiary of this Amendment.
(e)    Amendment, Modification and Waiver. This Amendment may not be amended nor may any provision hereof be waived except pursuant to a writing signed by each of the parties hereto.
(f)    Lender Consents. Each Lender party hereto (it being agreed that all of such Lenders constitute Required Lenders under the Credit Agreement) hereby (i) consents to the Administrative Agent delivering a direction in writing to the Collateral Trustee (it being agreed that such direction constitutes an Act of Required Secured Parties under the Collateral Trust Agreement) authorizing and directing the Collateral Trustee to execute Security Agreement Amendment No. 2 as set forth in the document attached as Exhibit B hereto on the Seventh Amendment Effective Date and (ii) approves the terms set forth herein and consents to the execution and delivery of Security Agreement Amendment No. 2 on the Seventh Amendment Effective Date.
[Remainder of Page Intentionally Left Blank]


8



IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to execute and deliver this Amendment as of the date first set forth above.
JPMORGAN CHASE BANK, N.A., as Administrative Agent


By: ____________________________
Name:
Title:




[Signature Page to Amendment No. 7 to Credit Agreement]



PEABODY ENERGY CORPORATION, as Borrower


By:                     
Name:

Title:    

[Signature Page to Amendment No. 7 to Credit Agreement]




AMERICAN LAND DEVELOPMENT, LLC
AMERICAN LAND HOLDINGS OF COLORADO, LLC
AMERICAN LAND HOLDINGS OF ILLINOIS, LLC
AMERICAN LAND HOLDINGS OF INDIANA, LLC
AMERICAN LAND HOLDINGS OF KENTUCKY, LLC
BIG RIDGE, INC.
BTU WESTERN RESOURCES, INC.
COALSALES II, LLC
CONSERVANCY RESOURCES, LLC
EL SEGUNDO COAL COMPANY, LLC
HAYDEN GULCH TERMINAL, LLC
HILLSIDE RECREATIONAL LANDS, LLC
KAYENTA MOBILE HOME PARK, INC.
KENTUCKY UNITED COAL, LLC
MOFFAT COUNTY MINING, LLC
NEW MEXICO COAL RESOURCES, LLC
PEABODY AMERICA, LLC
PEABODY ARCLAR MINING, LLC
PEABODY ASSET HOLDINGS, LLC
PEABODY BEAR RUN MINING, LLC
PEABODY BEAR RUN SERVICES, LLC
PEABODY CABALLO MINING, LLC
PEABODY CARDINAL GASIFICATION, LLC
PEABODY CHINA, LLC
PEABODY COALSALES, LLC
PEABODY COALTRADE, LLC
PEABODY COLORADO OPERATIONS, LLC
PEABODY COLORADO SERVICES, LLC
PEABODY COULTERVILLE MINING, LLC


By:                     
Name: James A. Tichenor
Title: Vice President and Treasurer


[Signature Page to Amendment No. 7 to Credit Agreement]



PEABODY DEVELOPMENT COMPANY, LLC
PEABODY ELECTRICITY, LLC
PEABODY EMPLOYMENT SERVICES, LLC
PEABODY GATEWAY NORTH MINING, LLC
PEABODY GATEWAY SERVICES, LLC
PEABODY GLOBAL FUNDING, LLC
PEABODY HOLDING COMPANY, LLC
PEABODY IC FUNDING CORP.
PEABODY ILLINOIS SERVICES, LLC
PEABODY INDIANA SERVICES, LLC
PEABODY INTERNATIONAL HOLDINGS, LLC
PEABODY INTERNATIONAL INVESTMENTS, INC.
PEABODY INTERNATIONAL SERVICES, INC.
PEABODY INVESTMENTS CORP.
PEABODY MIDWEST MANAGEMENT SERVICES, LLC
PEABODY MIDWEST MINING, LLC
PEABODY MIDWEST OPERATIONS, LLC
PEABODY MIDWEST SERVICES, LLC
PEABODY MONGOLIA, LLC
PEABODY NATURAL GAS, LLC
PEABODY NATURAL RESOURCES COMPANY
PEABODY NEW MEXICO SERVICES, LLC
PEABODY OPERATIONS HOLDING, LLC
PEABODY POWDER RIVER MINING, LLC
PEABODY POWDER RIVER OPERATIONS, LLC
PEABODY POWDER RIVER SERVICES, LLC
PEABODY ROCKY MOUNTAIN MANAGEMENT SERVICES, LLC
PEABODY ROCKY MOUNTAIN SERVICES, LLC


By:                     
Name: James A. Tichenor
Title: Vice President and Treasurer


[Signature Page to Amendment No. 7 to Credit Agreement]



PEABODY SCHOOL CREEK MINING, LLC
PEABODY SERVICES HOLDINGS, LLC
PEABODY SOUTHEAST MINING, LLC
PEABODY VENEZUELA COAL CORP.
PEABODY VENTURE FUND, LLC
PEABODY WILD BOAR MINING, LLC
PEABODY WILD BOAR SERVICES, LLC
PEABODY WILLIAMS FORK MINING, LLC
PEABODY WYOMING SERVICES, LLC
PEABODY-WATERSIDE DEVELOPMENT, L.L.C.
SAGE CREEK LAND & RESERVES, LLC
SENECA PROPERTY, LLC
SHOSHONE COAL CORPORATION
TWENTYMILE COAL, LLC
UNITED MINERALS COMPANY, LLC


By:                     
Name: James A. Tichenor
Title: Vice President and Treasurer


NGS ACQUISITION CORP., LLC


By:                     
Name: James A. Tichenor
Title: Treasurer


BIG SKY COAL COMPANY


By:                     
Name: Bryce G. West
Title: President


[Signature Page to Amendment No. 7 to Credit Agreement]




PEABODY SAGE CREEK MINING, LLC
PEABODY TWENTYMILE MINING, LLC
PEC EQUIPMENT COMPANY, LLC
SAGE CREEK HOLDINGS, LLC
SENECA COAL COMPANY, LLC

By:                     
Name: Scott T. Jarboe
Title: Secretary


PEABODY WESTERN COAL COMPANY


By:                     
Name: Eric R. Waller
Title: Secretary


PEABODY GLOBAL HOLDINGS, LLC


By:                     
Name:
Title:


[Signature Page to Amendment No. 7 to Credit Agreement]




[ ], as Refinancing Revolving Lender and as a Lender


By: ____________________________
Name:    
Title:    


[Signature Page to Amendment No. 7 to Credit Agreement]



BANK OF AMERICA, N.A., as a 2019 Incremental Revolving Lender


By: ____________________________
Name:    
Title:    



[Signature Page to Amendment No. 7 to Credit Agreement]



SCHEDULE I
Additional 2019 Incremental Revolving Commitment
2019 Incremental Revolving Lenders
2019 Incremental Revolving Commitments
 
Bank of America, N.A.
$20,000,000
 


Refinancing Revolving Commitments

Refinancing Revolving Lenders
Refinancing Revolving Commitments
L/C Issuance Limit
 
Goldman Sachs Bank USA
$75,000,000
$100,000,000
 
JPMorgan Chase Bank, N.A.
$75,000,000
$100,000,000
 
Credit Suisse AG, Cayman Islands Branch
$75,000,000
$75,000,000
 
Bank of Montreal, Chicago Branch
$75,000,000
$75,000,000
 





Refinancing Revolving Lenders
Refinancing Revolving Commitments
L/C Issuance Limit
 
Regions Bank
$75,000,000
N/A
 
Commerce Bank
$40,000,000
$100,000,000
 
Deutsche Bank AG New York Branch
$75,000,000
$75,000,000
 
Bank of America, N.A.
$50,000,000
$50,000,000
 
TOTAL
$540,000,000
 
 
 
 







Exhibit A
Credit Agreement

Attached.





CONFORMED THROUGH AMENDMENT NO. 1, AMENDMENT NO. 2, AMENDMENT NO. 3, AMENDMENT NO. 4, AMENDMENT NO. 5, TECHNICAL AMENDMENT, AMENDMENT NO. 6 AND PROPOSED AMENDMENT NO. 7
CONFORMED TO INCLUDE
FIRST AMENDMENT, DATED SEPTEMBER 18, 2017,
SECOND AMENDMENT, DATED NOVEMBER 17, 2017,
THIRD AMENDMENT, DATED DECEMBER 18, 2017,
FOURTH AMENDMENT, DATED APRIL 11, 2018,
FIFTH AMENDMENT, DATED JUNE 27, 2018 AND
TECHNICAL AMENDMENT, DATED JULY 19, 2018




CREDIT AGREEMENT

among

PEABODY ENERGY CORPORATION,
as Borrower,

GOLDMAN SACHSJPMORGAN CHASE BANK USA, N.A.,
as Administrative Agent,
and
The Other Lenders Party Hereto


Dated as of April 3, 2017



GOLDMAN SACHS BANK USA,
JPMORGAN CHASE BANK, N.A.,
GOLDMAN SACHS BANK USA,
BMO CAPITAL MARKETS CORP.,
CREDIT SUISSE LOAN FUNDING LLC,
DEUTSCHE BANK SECURITIES INC.,
REGIONS CAPITAL MARKETS,
and
CREDIT SUISSEBOFA SECURITIES (USA) LLC, INC.,
as Joint Lead Arrangers and Joint Bookrunners, as of the Seventh Amendment Effective Date



GOLDMAN SACHS BANK USA,
as Syndication Agent,
and
JPMORGAN CHASE BANK, N.A.,

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2

CREDIT SUISSE AG,
and
MACQUARIE CAPITAL (GOLDMAN SACHS BANK USA) INC.,
as Co-Syndication Agents, as of the Seventh Amendment Effective Date
as Co-Documentation Agentsand
COMMERCE BANK,
as Documentation Agent, as of the Seventh Amendment Effective Date




 

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TABLE OF CONTENTS
Section
 
Page
 
 
 
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
1
1.01
Defined Terms
1
1.02
Other Interpretive Provisions
54
1.03
Accounting Terms
54
1.04
Exchange Rates; Currency Equivalents
55
1.05
Additional Alternative Currencies
56
1.06
Change of Currency
56
1.07
Times of Day
57
1.08
Letter of Credit Amounts
57
1.09
Negative Covenant Compliance
57
1.10
Divisions
57
1.11
Interest Rates; LIBOR Notification
57
 
 
 
ARTICLE II. THE COMMITMENTS AND BORROWINGS
57
2.01
The Loans
5758
2.02
Borrowings, Conversions and Continuations of the Loans
58
2.03
Letters of Credit
60
2.04
[Reserved]
6970
2.05
Prepayments and Commitment Reductions
6970
2.06
Optional Termination or Reduction of Revolving Credit Commitments
74
2.07
Repayment of Loans
75
2.08
Interest
76
2.09
Fees
7776
2.10
Computation of Interest and Fees
7877
2.11
Evidence of Debt
7877
2.12
Payments Generally; Administrative Agent's Clawback
7877
2.13
Pro Rata; Sharing of Payments by Lenders
8079
2.14
[Reserved]
8180
2.15
Incremental Debt
8180
2.16
Refinancing Debt
8483
2.17
Cash Collateral
8685
2.18
Defaulting Lenders
8786
2.19
Dutch Auction Repurchases
8887
2.20
Open Market Repurchases
9089
 
 
 
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
90
3.01
Taxes
90
3.02
Illegality
9493
3.03
Inability to Determine Rates
94
3.04
Increased Costs; Reserves on Eurocurrency Rate Loans
9594
3.05
Compensation for Losses
9796
3.06
Mitigation Obligations; Replacement of Lenders
9897
3.07
Survival
9897

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ARTICLE IV. CONDITIONS PRECEDENT
98
4.01
Closing Date
98
4.02
Conditions to all Credit Extensions (Including on the ClosingSeventh Amendment Effective Date)
104103
 
 
 
ARTICLE V. REPRESENTATIONS AND WARRANTIES
104
5.01
Existence, Qualification and Power
105104
5.02
Authorization; No Contravention
105104
5.03
Governmental Authorization
105
5.04
Binding Effect
105
5.05
Financial Statements; No Material Adverse Effect
106105
5.06
Litigation
106
5.07
No Default
106
5.08
Ownership and Identification of Property
106
5.09
Environmental Compliance
107
5.10
Insurance
108107
5.11
Taxes
108
5.12
ERISA Compliance
108
5.13
Subsidiaries
109108
5.14
Margin Regulations; Investment Company Act
109108
5.15
Disclosure
109
5.16
Compliance with Laws
109
5.17
Anti-Corruption; Sanctions; Terrorism Laws
110109
5.18
Intellectual Property; Licenses, Etc.
110
5.19
Security Documents
111110
5.20
Mines
111
5.21
Solvency
111
5.22
Labor Relations
111
 
 
 
ARTICLE VI. AFFIRMATIVE COVENANTS
112111
6.01
Financial Statements
112111
6.02
Certificates; Other Information
112
6.03
Notices
114113
6.04
Payment of Tax Obligations
114
6.05
Preservation of Existence
115114
6.06
Maintenance of Properties
115114
6.07
Maintenance of Insurance
115114
6.08
Compliance with Laws
115
6.09
Books and Records
116115
6.10
Inspection Rights
116115
6.11
Use of Proceeds
116
6.12
Additional Guarantors
117116
6.13
Unrestricted Subsidiaries
117116
6.14
Preparation of Environmental Reports
117
6.15
Certain Long Term Liabilities and environmental Reserves
117
6.16
Covenant to Give Security
118117
6.17
Maintenance of Ratings
121120

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6.18
Post Closing Covenants
121120
6.19
ERISA
121120
 
 
 
ARTICLE VII. NEGATIVE COVENANTS
121
7.01
Liens
121
7.02
Investments
124123
7.03
Indebtedness
126
7.04
Fundamental Changes
130
7.05
Dispositions
131130
7.06
Restricted Payments
133132
7.07
Change in Nature of Business
135134
7.08
Transactions with Affiliates
135134
7.09
[Reserved]
136135
7.10
Use of Proceeds
136135
7.11
Financial Covenant
136
7.12
Burdensome Agreements
136
7.13
Restrictions of Specified Subsidiaries
137
7.14
[Reserved]
138137
7.15
Fiscal Year
138137
7.16
Sale and Lease-Backs
138
7.17
Amendments or Waivers of Organizational Documents
138
7.18
RestructuringPermitted PRB-CO Joint Venture Transactions
138
7.19
Permitted Australian Restructuring Transactions
139
 
 
 
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
139138
8.01
Events of Default
139138
8.02
Remedies Upon Event of Default
141
8.03
Exclusion of Immaterial Subsidiaries
142141
8.04
Application of Funds
142141
 
 
 
ARTICLE IX. ADMINISTRATIVE AGENT
143
9.01
Appointment and Authority
143
9.02
Rights as a Lender
143
9.03
Exculpatory Provisions
144143
9.04
Reliance by Administrative Agent
145
9.05
Delegation of Duties
145
9.06
Resignation of Administrative Agent
146145
9.07
Non-Reliance on Administrative Agent and Other Lenders .
147146
9.08
No Other Duties, Etc
148147
9.09
Administrative Agent May File Proofs of Claim
148147
9.10
Guaranty and Collateral Matters
149148
9.11
Withholding Tax
149
9.12
Intercreditor AgreementsCollateral Trust Agreement, Collateral Matters and Specified Amendments
150149
9.13
Certain ERISA Matters
151150

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ARTICLE X. MISCELLANEOUS
153151
10.01
Amendments, Etc
153151
10.02
Notices; Effectiveness; Electronic Communication
156155
10.03
No Waiver; Cumulative Remedies
159158
10.04
Expenses; Indemnity; Damage Waiver
159158
10.05
Marshalling; Payments Set Aside
162161
10.06
Successors and Assigns
162161
10.07
Treatment of Certain Information; Confidentiality
167166
10.08
Right of Setoff
168167
10.09
usury Savings Clause
169168
10.10
Counterparts; Integration; Effectiveness
170168
10.11
Survival of Representations, Warranties
170169
10.12
Servability
170169
10.13
Replacement of Lenders
170169
10.14
Governing Law; Jurisdiction; Etc
172170
10.15
Waiver of Jury Trial
172171
10.16
USA PATRIOT Act Notice
173172
10.17
Time of the Essence
173172
10.18
[Reserved]
173172
10.19
No Advisory or Fiduciary Responsibility
173172
10.20
[Reserved]
174173
10.21
Release of Liens and Release from Guaranty
174173
10.22
Independence of Covenants
175174
10.23
Independent Nature of Lenders' Rights
175174
10.24
Acknowledgment and and Consent to Bail-In of EEA Financial Institutions
176175
10.25
Original Issue Discount
176175
10.26
Acknowledgment Regarding Any Supported QFC's
175








    

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SCHEDULES
1.01(a)
Guarantors
1.01(b)
Unrestricted Subsidiaries
1.01(c)
Excluded Equity Interests
1.01(d)
Real Property Marketed for Sale
1.01(e)
Reserve Areas
1.01(f)
PRB-CO Joint Venture Transactions
1.01(g)
Existing Letters of Credit
2.01
Commitments
5.08(b)
Fee Owned Material Real Property
5.08(c)
Leased Material Real Property
5.08(d)
Material Real Property for Title Opinions
5.09
Environmental Matters
5.13
Subsidiaries
5.18
Intellectual Property
5.20
Mines
6.18
Post Closing Covenants
7.01
Existing Liens
7.02
Existing Investments
7.03
Existing Indebtedness
7.05
Specified Dispositions
7.08
Transactions with Affiliates
7.12
Burdensome Agreements
10.02
Administrative Agent’s Office; Certain Addresses for Notices
10.06
Processing and Recordation Fees
EXHIBITS
Form of:
A
Borrowing Notice
B
[Reserved]
C-1
Term Note
C-2
Incremental Revolving Note
D
Amended and Restated Compliance Certificate
E
Assignment and Assumption
F
Guaranty
G
Security Agreement[Reserved]
H-1
Opinion of Jones Day
H-2
Opinion of Triay Stagnetto Neish
H-3
Opinion of Bingham Greenebaum Doll LLP
I-1
Collateral Trust Agreement[Reserved]
J
Mortgage
K
Solvency Certificate
L
Auction Procedures
M-1
U.S. Tax Compliance Certificate
M-2
U.S. Tax Compliance Certificate

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M-3
U.S. Tax Compliance Certificate
M-4
U.S. Tax Compliance Certificate



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CREDIT AGREEMENT
This CREDIT AGREEMENT (as amended, restated, extended, supplemented or otherwise modified, the “Agreement”) is entered into as of April 3, 2017, among, inter alios, PEABODY ENERGY CORPORATION, a Delaware corporation (the “Borrower”), each lender from time to time party hereto (collectively, the “Lenders” and, individually, a “Lender”), GOLDMAN SACHS BANK USA, as Administrative Agent, GOLDMAN SACHS BANK USA, J.P. MORGAN CHASE BANK, N.A. and CREDIT SUISSE SECURITIES (USA) LLC, as joint lead arrangers and joint bookrunners, GOLDMAN SACHS BANK USA, as syndication agent (in such capacity, the “Syndication Agent”), and JPMORGAN CHASE BANK, N.A., CREDIT SUISSE AG AND MACQUARIE CAPITAL (USA) INC., as co-documentation agents (in such capacities, the “Documentation Agents”).and JPMorgan Chase Bank, N.A. as administrative agent.
PRELIMINARY STATEMENTS
The Borrower, together with certain of its wholly-owned Domestic Subsidiaries and one subsidiary organized under the laws of Gibraltar (collectively, the “Debtors”), each filed a voluntary petition for relief under Chapter 11 of Title 11 of the United States Code on April 13, 2016.
Pursuant to the Confirmation Order, entered on March 17, 2017, the Bankruptcy Court confirmed the Debtors’ Plan of Reorganization, and the Debtors will emerge from the Bankruptcy Cases pursuant thereto (the “Exit”) on the Closing Date.
The Borrower has requested that on the Closing Date, the Term Lenders make Term Loans to the Borrower to finance a portion of the Transactions and to pay fees and expenses in connection with the Transactions (the “Transaction Costs”) and the Term Lenders have agreed to provide such Term Loans on the terms and subject to the conditions set forth herein.
The Borrower has requested that, on the Second Amendment Effective Date and the Third Amendment Effective Date, the Incremental Revolving Lenders party to the Second Amendment and the Third Amendment, as applicable, make Incremental Revolving Commitments to the Borrower for general working capital purposes (including the issuance of Letters of Credit and Bank Guarantees), and such Incremental Revolving Lenders have agreed to provide such Incremental Revolving Commitments on the terms and subject to the conditions set forth herein and in the Second Amendment or the Third Amendment, as applicable.
The Borrower has requested that, on the Seventh Amendment Effective Date, (a) the Refinancing Revolving Lenders party to the Seventh Amendment, make Refinancing Revolving Commitments (as defined therein) to the Borrower and such Refinancing Revolving Lenders have agreed to provide such Refinancing Revolving Commitments on the terms and subject to the conditions set forth herein and in the Seventh Amendment, and the letters of credit identified on Schedule 1.01(g) hereto as of the Seventh Amendment Effective Date (the “Existing Letters of Credit”) shall be deemed to be Letters of Credit for all purposes under this Agreement.

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In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01    Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
2017 Incremental Revolving Facility” has the meaning specified in the Second Amendment, as increased pursuant to the Third Amendment.
“2019 Refinancing Revolving Facility” means the Refinancing Revolving Facility provided by the Revolving Lenders party to the Seventh Amendment.
A$” means the lawful currency of Australia.
ABL Agent(s)” means each administrative agent, collateral agent, collateral trustee or other representative of the holders of ABL Obligations with respect to any ABL Facility.
ABL Credit Documents” means the instruments or agreements executed in connection with any ABL Facility (including all security agreements, collateral assignments, mortgages, control agreements or other grants or transfers for security in favor of any ABL Agent, for the benefit of the holders of ABL Obligations) and any instrument or agreement executed in connection with any refinancings and replacements thereof to the extent permitted under the ABL Intercreditor Agreement, as each such instrument or agreement may be amended, restated, supplemented, replaced or otherwise modified from time to time in accordance with the ABL Intercreditor Agreement.
ABL Facility” means one or more asset based lending facilities; provided that the aggregate principal amount outstanding of all ABL Facilities, together with the aggregate principal amount (or similar amount) outstanding under any Permitted Securitization Program, shall not exceed the greater of $250,000,000 and 3.5% of Consolidated Net Tangible Assets; provided, further, that no ABL Facility will be permitted at any time that any Incremental Revolving Commitments are in effect.
ABL Intercreditor Agreement” means an intercreditor agreement to be entered into between the ABL Agent, the Collateral Trustee and the Junior Collateral Trustee that sets forth the relative priority of the Priority Liens and the Junior Liens (as each term is defined in the Collateral Trust Agreement), on the one hand, compared to the ABL Liens (as defined in the Collateral Trust Agreement), on the other hand, on substantially the terms described in Section 7.25 of the Collateral Trust Agreement and otherwise in accordance with Section 7.25 of the Collateral Trust Agreement, as the same may be amended, restated, supplemented or otherwise modified from time to time.
ABL Obligations” means all debts, liabilities and obligations incurred by the Borrower or any Subsidiary under the ABL Credit Documents.

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ABL Priority Collateral” has the meaning assigned to “ABL Priority Collateral” in the Collateral Trust Agreement.
Accepting Lenders” has the meaning specified in Section 10.01(g).
Accounting Change” means changes in accounting principles after the ClosingSeventh Amendment Effective Date required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board or, if applicable, the SEC.
Acquisition Agreement” means, with respect to any Permitted Acquisition, the definitive documentation for such Permitted Acquisition.
Acquisition Agreement Representations” means, with respect to any Acquisition Agreement, the representations and warranties made by or with respect to the Person to be acquired or selling its assets pursuant to such Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that (a) the accuracy of any such representation or warranty is a condition to the Borrower’s or its Restricted Subsidiary’s obligations to close under the Acquisition Agreement or (b) the Borrower or the Restricted Subsidiary has the right to terminate its obligations under the Acquisition Agreement as a result of a breach of such representations and warranties.
Additional Extensions of Credit” has the meaning specified in Section 10.01.
Administrative Agent” means Goldman SachsJPMorgan Chase Bank USA, N.A., in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02, or such other address or account as the Administrative Agent may from time to time notify to the Borrower and the Lenders.
Administrative Questionnaire” means an administrative questionnaire in a form supplied by the Administrative Agent.
Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
Agent Parties” has the meaning specified in Section 10.02(c).
Agents” means the Administrative Agent, the Syndication Agent and the Documentation AgentsAgent.
Aggregate Commitments” means the Commitments of all the Lenders.
Agreement” has the meaning specified in the introductory paragraph to this Agreement.

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Alternative Currency” means each of Euro, Sterling, A$ and each other currency (other than Dollars) that is approved in accordance with Section 1.05.
Alternative Currency Equivalent” means, at any date, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Alternative Currency with Dollars on such date.
Anti-Corruption Laws” has the meaning specified in Section 5.17.
Applicable Percentage” means (a) in respect of the Term Loan Facility, with respect to any Term Lender at any time, the percentage (carried out to the tenth decimal place) of the Term Loan Facility represented by (i) until the Closing Date, such Term Lender’s respective Term Loan Commitments and (ii) thereafter, the aggregate principal amount of such Term Lender’s Term Loans then outstanding, and (b) in respect of the Incremental Revolving FacilitiesFacility, with respect to any Incremental Revolving Lender at any time, the percentage (carried out to the ninth decimal place) of the then available Incremental Revolving FacilitiesFacility represented by such Incremental Revolving Lender’s Incremental Revolving Commitment at such time. If the commitment of each Incremental Revolving Lender to make Incremental Revolving Loans and the obligation of the L/C Issuers to make L/C Credit Extensions have been terminated pursuant to Section 8.02, or if the Incremental Revolving Commitments have expired, then the Applicable Percentage of each Incremental Revolving Lender in respect of the Incremental Revolving FacilitiesFacility shall be determined based on the Applicable Percentage of such Incremental Revolving Lender in respect of the Incremental Revolving FacilitiesFacility most recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each Term Lender in respect of the Term Loan Facility as of the Closing Date is set forth opposite the name of such Term Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Term Lender becomes a party hereto, as applicable. The Applicable Percentage of each Incremental Revolving Lender in respect of the Incremental Revolving Facility as of the ThirdSeventh Amendment Effective Date is set forth opposite the name of such Incremental Revolving Lender on Schedule 3I to the ThirdSeventh Amendment or in the Assignment and Assumption pursuant to which such Incremental Revolving Lender becomes a party hereto, as applicable.
Applicable Rate” means:
(a)    (a) with respect to the Term Loan Facility, a percentage per annum equal to (i) 2.75% for Eurocurrency Rate Loans and (ii) 1.75% for Base Rate Loans and;
(b)    (b) with respect to the 2017 Incremental Revolving FacilitiesFacility, a percentage per annum equal to (i) 3.25% for Eurocurrency Rate Loans and (ii) 2.25% for Base Rate Loans. For the avoidance of doubt, the Applicable Rate with respect to the Term Loan Facility as in effect for all dates occurring (i) prior to the First Amendment Effective Date shall be the “Applicable Rate” as defined in this Agreement immediately prior to giving effect to the First Amendment and (ii) during the period commencing on the First Amendment Effective Date and ending on the date immediately prior to the Fourth

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Amendment Effective Date shall be the “Applicable Rate” as defined in this Agreement immediately prior to giving effect to the Fourth Amendment.; and
(c)    with respect to the 2019 Refinancing Revolving Facility:
(i)    until delivery of financial statements and a related Compliance Certificate for the first full fiscal quarter of the Borrower ending after the Seventh Amendment Effective Date pursuant to Section 6.02, (1) for Revolving Loans that are Eurocurrency Rate Loans, 3.25% and (2) for Revolving Loans that are Base Rate Loans, 2.25% and
(ii)    thereafter, the percentages per annum set forth in the table below, based upon the First Lien Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02:
First Lien Leverage Ratio
Applicable Rate for Revolving Loans that are Eurocurrency Rate Loans
Applicable Rate for Revolving Loans that are Base Rate Loans
< 0.50 to 1.00
2.75%
1.75%
> 0.50 to 1.00 but
≤ 1.50 to 1.00
3.00%
2.00%
> 1.50 to 1.00
3.25%
2.25%

Any increase or decrease in the Applicable Rate resulting from a change in the First Lien Leverage Ratio shall become effective as of the first Business Day immediately following the most recent delivery of a Compliance Certificate pursuant to Section 6.02.
Notwithstanding the foregoing, (a) the Applicable Rate in respect of any Class of Incremental Term Loans shall be the applicable percentages per annum set forth in the relevant Incremental Amendment, (b) the Applicable Rate in respect of any Class of Loans under any Refinancing Term Facility shall be the applicable percentages per annum set forth in the relevant agreement and (c) in the case of the Term Loans and any Class of Incremental Term Loans, the Applicable Rate shall be increased as, and to the extent, necessary to comply with the provisions of Section 2.15(e).
Notwithstanding anything to the contrary contained above in this definition or elsewhere in this Agreement, if it is subsequently determined that the First Lien Leverage Ratio set forth in any Compliance Certificate delivered to the Administrative Agent is inaccurate for any reason and the result thereof is that the Lenders received interest for any period based on an Applicable Rate that is less than that which would have been applicable had the First Lien Leverage Ratio been accurately determined, then, for all purposes of this Agreement, the Applicable Rate for any day occurring within the period covered by such Compliance Certificate shall retroactively be deemed to be the relevant percentage as based upon the accurately determined First Lien Leverage Ratio for such period, and any shortfall in the interest theretofore paid by the Borrower for the relevant

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period as a result of the miscalculation of the First Lien Leverage Ratio shall be deemed to be (and shall be) due and payable, at the time the interest for such period were required to be paid. In addition, if the Borrower shall have failed to deliver any of the financial statements within one (1) Business Day after the applicable date required under Section 6.01, then, the First Lien Leverage Ratio shall be deemed to be greater than 1.50 to 1.00 for the purposes of determining the Applicable Rate for Revolving Loans (only for so long as such failure continues, after which such ratio shall be determined based on the First Lien Leverage Ratio as set forth in the most recently delivered financial statements).
Applicable Reserve Requirement” means, at any time, for any Eurocurrency Rate Loan, the maximum rate, expressed as a decimal, at which reserves (including any basic marginal, special, supplemental, emergency or other reserves) are required to be maintained with respect thereto against “Eurocurrency liabilities” (as such term is defined in Regulation D) under regulations issued from time to time by the Board of Governors or other applicable banking regulator. Without limiting the effect of the foregoing, the Applicable Reserve Requirement shall reflect any other reserves required to be maintained by such member banks with respect to (i) any category of liabilities which includes deposits by reference to which the applicable Eurocurrency Rate or any other interest rate of a Loan is to be determined, or (ii) any category of extensions of credit or other assets which include Eurocurrency Rate Loans. A Eurocurrency Rate Loan shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credit for proration, exceptions or offsets that may be available from time to time to the applicable Lender. The rate of interest on Eurocurrency Rate Loans shall be adjusted automatically on and as of the effective date of any change in the Applicable Reserve Requirement.
Applicable Time” means, with respect to any payments in any Alternative Currency, a New York City time reasonably determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, subject to the Administrative Agent or such L/C Issuer providing advance notice to the Borrower that such time is necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payments.
Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
Arrangers” means (a) Goldman Sachs Bank USA, JPMorgan Chase Bank, N.A. and Credit Suisse Securities (USA) LLC, each in its capacity as joint lead arranger and joint bookrunner as of the Closing Date, (b) Goldman Sachs Bank USA, BMO Capital Markets, Credit Suisse Securities (USA) LLC and JPMorgan Chase Bank, N.A., each in its capacity as joint lead arranger and joint bookrunner for the 2017 Incremental Revolving Facility and, (c) Goldman Sachs Bank USA, JPMorgan Chase Bank, N.A., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc. and BMO Capital Markets Corp., each in its capacity as joint lead arranger and joint bookrunner for the Term Loans made (or deemed made) on the Fourth Amendment Effective Date., and JPMorgan Chase Bank, N.A., Goldman Sachs Bank USA, BMO Capital Markets Corp., Credit Suisse Loan Funding LLC, Deutsche Bank Securities Inc., Regions Capital Markets and BofA Securities, Inc., each in its capacity as a joint lead arranger and joint bookrunner as of the Seventh Amendment Effective Date.

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Asset Sale” means any Disposition or series of related Dispositions of property by the Borrower or any of its Restricted Subsidiaries to any Person; provided that “Asset Sale” shall exclude any Disposition or series of related Dispositions with a fair market value (as reasonably determined by the Borrower in good faith) of less than $10,000,000; provided, further, that “Asset Sale” shall exclude the sale or discount of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof.
Asset Sale Sweep Provision” has the meaning specified in Section 2.05(e).
Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.
Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.06(b), and accepted by the Administrative Agent) in substantially the form of Exhibit E or any other form approved by the Administrative Agent, in accordance with Section 10.06(b).
Attributable Indebtedness” means, on any date, in respect of any Capital Lease Obligations of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.
Auction” has the meaning specified in Section 2.19(a).
Auction Manager” has the meaning specified in Section 2.19(a).
Auction Procedures” means the procedures for conducting any Auction set forth on Exhibit L, subject to modification as mutually determined by the Borrower and the Auction Manager and consented to by the Administrative Agent (such consent not to be unreasonably withheld or delayed).
Audited Financial Statements” means the audited consolidated balance sheet of the Borrower and its Subsidiaries for each of the fiscal years ended December 31, 20162018, December 31, 20152017 and December 31, 20142016 and the related consolidated statements of income or operations, changes in shareholders’ equity and cash flows for such fiscal yearthe year ended December 31, 2018, the period from April 2, 2017 through December 31, 2017, the period from January 1, 2017 through April 1, 2017 and the year ended December 31, 2016, of the Borrower and its Subsidiaries, including the notes thereto.
Availability Period” means in respect of each Incrementalthe Revolving Facility, the period from and including the SecondSeventh Amendment Effective Date (or, with respect to any Incremental Revolving Facility other than the 2017 Incremental Revolving Facility, the applicable Incremental Facility Effective Date) to the earliest of (a) the Incremental Revolving Facility Maturity Date, (b) the date of termination of the Incremental Revolving Commitments pursuant to Section 2.06 and (c) the date of termination of the commitment of each Lender to make Loans and of the obligation of the L/C Issuers to make L/C Credit Extensions pursuant to Section 8.02.

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Authorization Order” means that certain Order (I) Authorizing the Debtors to (A) Enter into Exit Financing Commitment Letter and Related Agreements and (B) Incur and Pay Certain Related Fees and/or Premiums, Indemnities, Costs and Expenses; and (II) Granting Related Relief, as entered in the Bankruptcy Court on January 27, 2017, Docket No. 2225.
Backstop Commitment Agreement” means that certain Backstop Commitment Agreement, dated as of December 22, 2016, by and among the Borrower and each Commitment Party (as defined therein).
Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
Bank Guarantee” means a direct guaranty or undertaking issued for the account of the Borrower pursuant to this Agreement by an L/C Issuer in form acceptable to such L/C Issuer issued to provide credit support to the Borrower or any of its Restricted Subsidiaries.
Bankruptcy Cases” means the cases of Borrower and certain of its direct and indirect wholly-owned Domestic Subsidiaries and one subsidiary organized under the laws of Gibraltar in the United States Bankruptcy Court for the Eastern District of Missouri under Chapter 11 of Title 11 of the United States Code consolidated under Case No. 16-42529.
Bankruptcy Court” means the United States Bankruptcy Court for the Eastern District of Missouri and, to the extent of the withdrawal of any reference under 28 U.S.C. § 157, the United States District Court for the Eastern District of Missouri.
Base Rate” means, for any day, a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 0.50%, (b) the Eurocurrency Rate (after giving effect to any Eurocurrency Rate “floor”) that would be payable on such day for a Eurocurrency Rate Loan with a one month Interest Period plus 1%, and (c)greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus ½ of 1% and (c) the Eurocurrency Rate for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%; provided that for the purpose of this definition, the Eurocurrency Rate for any day shall be based on the LIBO Screen Rate (or if the LIBO Screen Rate is not available for such one month Interest Period, the Interpolated Rate) at approximately 11:00 a.m. London time on such day. Any change in the Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Federal FundsEurocurrency Rate shall be effective onfrom and including the effective daydate of such change in the Prime Rate, the NYFRB Rate or the Federal FundsEurocurrency Rate, respectively. If, at any time, the Base Rate is being used as an alternate rate of interest pursuant to Section 3.03, then the Base Rate shall be the greater of clauses (a) and (b)

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above and shall be determined without reference to clause (c) above. For the avoidance of doubt, if the Base Rate as determined pursuant to the foregoing would be less than zero, the Base Rate1.00%, such rate shall be deemed to be zero at such time1.00% for purposes of this Agreement.
Base Rate Loan” means a Term Loan or an Incrementala Revolving Loan that bears interest based on the Base Rate, as applicable.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership or control as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
Borrower” has the meaning specified in the introductory paragraph hereto.
Borrower Materials” has the meaning specified in Section 6.02.
Borrowing” means an Incrementala Revolving Borrowing or a Term Loan Borrowing, as the context may require.
Borrowing Notice” means a notice of (a) a Term Loan Borrowing, (b) an Incrementala Revolving Borrowing, (c) a conversion of Term Loans or Incremental Revolving Loans from one Type to the other or (d) a continuation of Eurocurrency Rate Loans, in each case, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.
Building” means a Building as defined in 12 CFR Chapter III, Section 339.2.
Business Day” means (i) any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in such state are authorized or required by law or other governmental action to close and (ii) with respect to all notices, determinations, fundings and payments in connection with the Eurocurrency Rate or any Eurocurrency Rate Loans, the term “Business Day” means any day which is a Business Day described in clause (i) and which is also a day for trading by and between banks in Dollar deposits in the London interbank market.
Capital Expenditure” means any expenditure that, in accordance with GAAP, is or should be included in “purchase of property and equipment” or similar items, or which should otherwise be capitalized, reflected in the consolidated statement of cash flows of the Borrower and its Restricted Subsidiaries; provided that Capital Expenditure shall not include any expenditure (i) for replacements and substitutions for fixed assets, capital assets or equipment to the extent made with Net Insurance/Condemnation Proceeds invested pursuant to Section 2.05(h) or with Net Proceeds invested pursuant to Section 2.05(e) or (ii) which constitute a Permitted Acquisition.

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Capital Lease Obligations” means of any Person as of the date of determination, the aggregate liability of such Person under Financing Leases reflected on a balance sheet of such Person under GAAP.
Capital Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants or options to purchase any of the foregoing, but excluding any securities convertible into or exchangeable for shares of Capital Stock.
Cash Collateralize” has the meaning specified in Section 2.17(a) and “Cash Collateral” shall have a correlative meaning.
Cash Equivalents” means
(a)
U.S. Government Obligations or certificates representing an ownership interest in U.S. Government Obligations with maturities not exceeding two years from the date of acquisition,
(b)
(i) demand deposits, (ii) time deposits and certificates of deposit with maturities of two years or less from the date of acquisition, (iii) bankers’ acceptances with maturities not exceeding two years from the date of acquisition, and (iv) overnight bank deposits, in each case with any bank or trust company organized or licensed under the laws of the United States or any state thereof (including any branch of a foreign bank licensed under any such laws) having capital, surplus and undivided profits in excess of $250,000,000 (or the foreign currency equivalent thereof) whose short-term debt is rated A-2 or higher by S&P or P-2 or higher by Moody’s,
(c)
commercial paper maturing within 364 days from the date of acquisition thereof and having, at such date of acquisition, ratings of at least A-1 by S&P or P-1 by Moody’s,
(d)
readily marketable direct obligations issued by any state, commonwealth or territory of the U.S. or any political subdivision thereof, in each case rated at least A-1 by S&P or P-1 by Moody’s with maturities not exceeding one year from the date of acquisition,
(e)
bonds, debentures, notes or other obligations with maturities not exceeding two years from the date of acquisition issued by any corporation, partnership, limited liability company or similar entity whose long-term unsecured debt has a credit rate of A2 or better by Moody’s and A or better by S&P;
(f)
investment funds at least 95% of the assets of which consist of investments of the type described in clauses (a) through (e) above (determined without regard to the maturity and duration limits for such investments set forth in such clauses, provided that the weighted average maturity of all investments held by any such fund is two years or less),

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(g)
fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (b) above and
(h)
in the case of a Restricted Subsidiary that is a Foreign Subsidiary, substantially similar investments, of comparable credit quality, denominated in the currency of any jurisdiction in which such Person conducts business.
Cash Management Agreement” means any agreement evidencing Cash Management Obligations.
Cash Management Bank” means any Person that (a) at the time it enters into a Cash Management Agreement, is a Lender, an Agent, an Arranger or an Affiliate of any of the foregoing or (b) becomes a Lender, an Agent, an Arranger or an Affiliate of any of the foregoing at any time after it has entered into a Cash Management Agreement.
Cash Management Obligations” means any and all obligations of the Borrower or any Restricted Subsidiary arising out of (a) the execution or processing of electronic transfers of funds by automatic clearing house transfer, wire transfer or otherwise to or from the deposit accounts of the Borrower and/or any Restricted Subsidiary, (b) the acceptance for deposit or the honoring for payment of any check, draft or other item with respect to any such deposit accounts, (c) any other treasury, deposit, disbursement, overdraft, and cash management services afforded to the Borrower or any Restricted Subsidiary, and (d) stored value card, commercial credit card and merchant card services.
Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request or directive (whether or not having the force of law) by any Governmental Authority required to be complied with by any Lender. For purposes of this definition, (x) the Dodd-Frank Act and any rules, regulations, orders, requests, guidelines and directives adopted, promulgated or implemented in connection therewith, and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to have been adopted, issued, promulgated or implemented after the ClosingSeventh Amendment Effective Date, but shall be included as a Change in Law only to the extent a Lender is imposing applicable increased costs or costs in connection with capital adequacy and other requirements similar to those described in Sections 3.04(a) and (b) generally on other similarly situated borrowers of loans under United States credit facilities.
Change of Control” means:
(a)    an event or series of events by which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the

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“beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934), directly or indirectly, of 35% or more of the equity securities of the Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis; or
(b)    a “Change of Control” as defined in the Priority Lien Notes Indenture or the ABL Credit Documents, in each case, as amended, restated, modified, replaced, or refinanced from time to time.
Class” means (i) with respect to Lenders, each of the following classes of Lenders: (a) Term Lenders, (b) Incremental Term Lenders in respect of each applicable series of Incremental Term Loans, (c) Incremental Revolving Lenders and (d) Refinancing Facility Lenders in respect of each applicable series of Refinancing Loans and (ii) with respect to Loans, each of the following classes of Loans: (a) Term Loans, (b) each series of Incremental Term Loans, (c) Incremental Revolving Loans and (d) each series of Refinancing Loans.
Closing Date” means the date on which all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01 and the Term Loans are made, which occurred on April 3, 2017.
Closing Date Material Adverse Effect” means any circumstance or condition that individually or in the aggregate, would reasonably be expected to materially adversely affect (a) the business, assets, results of operations, properties or financial condition of the Borrower and its Restricted Subsidiaries taken as a whole, (b) the ability of the Borrower and the Guarantors, taken as a whole, to perform their payment obligations under this Agreement or the Guaranty or (c) the rights and remedies of the Administrative Agent, the Collateral Trustee and the Lenders under this Agreement or the other Loan Documents, in each case, except to the extent such event results from, arises out of, or is attributable to, the following (either alone or in combination): (i) any change after such date in global, national or regional political conditions (including hostilities, acts of war, sabotage, terrorism or military actions, or any escalation or material worsening of any such hostilities, acts of war, sabotage, terrorism or military actions existing or underway) or in the general business, market, financial or economic conditions affecting the industries, regions and markets in which the Loan Parties operate, including any change in the United States or applicable foreign economies or securities, commodities or financial markets, or force majeure events or “acts of God”; (ii) any changes after such date in applicable law or GAAP, or in the interpretation or enforcement thereof; (iii) the execution, announcement or performance of the transactions contemplated by the Plan of Reorganization (including any act or omission of the Loan Parties expressly required or prohibited, as applicable, by the Plan of Reorganization or consented to or required by the Requisite Members of the Noteholder Steering Committee (each as defined in the Plan of Reorganization) in writing); (iv) changes in the market price or trading volume of the claims or equity or debt securities of the Loan Parties (but not the underlying facts giving rise to such changes unless such facts are otherwise excluded pursuant to the clauses contained in this definition); (v) the departure of officers or directors of any of the Loan Parties not in contravention of the terms and conditions of the Plan Support Agreement or the Plan of Reorganization (but not the underlying facts giving rise to such departure unless such facts are otherwise

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excluded pursuant to the clauses contained in this definition); (vi) the filing or pendency of the Bankruptcy Cases (including events resulting from any filing made in such Bankruptcy Cases); or (vii) declarations of national emergencies in the United States or natural disasters in the United States; provided, that the exceptions set forth in clauses (i), (ii) and (vii) shall not apply to the extent that such event is materially and disproportionately adverse to the Loan Parties, taken as a whole, as compared to other companies in the industries in which the Loan Parties operate.
Code” means the Internal Revenue Code of 1986, as amended from time to time (unless as indicated otherwise).
Collateral” means, collectively, all of the real, personal and mixed property (including Equity Interests) in which Liens are purported to be granted pursuant to the Security Documents as security for all or any part of the Obligations (subject to exceptions contained in the Security Documents), in each case excluding any Excluded Assets.
Collateral Questionnaire” means a certificate in form reasonably satisfactory to Administrative Agent that provides information with respect to the personal or mixed property of each Loan Party.
Collateral Trust Agreement” means a collateral trust agreement substantially in the form of Exhibit I-1the Collateral Trust Agreement dated the Closing Date, among the Borrower, the Collateral Trustee and the other parties party thereto from time to time, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
Collateral Trustee” means Wilmington Trust, National Association and its successors and assigns as Collateral Trustee pursuant to the Collateral Trust Agreement.
Commitment” means a Term Loan Commitment, an Incrementala Revolving Commitment or corresponding commitment under another Facility, as the context may require.
“Commitment Fee Rate” shall mean a rate per annum equal to 0.50%; provided that, (other than with respect to the 2017 Incremental Revolving Facility) commencing on the first date of the first full fiscal quarter commencing after the Seventh Amendment Effective Date and for any day thereafter, the Commitment Fee Rate shall be the applicable rate per annum set forth in the table below, based upon the First Lien Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02:
First Lien Leverage Ratio
Commitment Fee Rate
< 0.50 to 1.00
0.375%
≥ 0.50 to 1.00 but ≤ 1.50 to 1.00
0.40%
> 1.50 to 1.00
0.50%
Notwithstanding anything to the contrary contained above in this definition or elsewhere in this Agreement, if it is subsequently determined that the First Lien Leverage

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Ratio set forth in any Compliance Certificate delivered to the Administrative Agent is inaccurate for any reason and the result thereof is that the Lenders received commitment fees for any period based on a Commitment Fee Rate that is less than that which would have been applicable had the First Lien Leverage Ratio been accurately determined, then, for all purposes of this Agreement, the Commitment Fee Rate for any day occurring within the period covered by such Compliance Certificate shall retroactively be deemed to be the relevant percentage as based upon the accurately determined First Lien Leverage Ratio for such period, and any shortfall in the commitment fees theretofore paid by the Borrower for the relevant period as a result of the miscalculation of the First Lien Leverage Ratio shall be deemed to be (and shall be) due and payable, at the time the commitment fees for such period were required to be paid. In addition, if the Borrower shall have failed to deliver any of the financial statements within one (1) Business Day after the applicable date required under Section 6.01, then, the First Lien Leverage Ratio shall be deemed to be greater than 1.50 to 1.00 for the purposes of determining the Commitment Fee Rate (only for so long as such failure continues, after which such ratio shall be determined based on the First Lien Leverage Ratio as set forth in the most recently delivered financial statements).
Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended and any successor statute.
Compliance Certificate” means a certificate substantially in the form of Exhibit D.
Confirmation Order” means an order confirming the Plan of Reorganization, which confirmation order shall be, to the extent material to the Arrangers and the Lenders, in form and substance reasonably acceptable to each Arranger and Lender.
Consolidated Capital Expenditures” means, for any period, the aggregate of all Capital Expenditures of the Borrower and its Restricted Subsidiaries during such period determined on a consolidated basis in accordance with GAAP.
Consolidated EBITDA” means, as of the last day of any period, Consolidated Net Income for such period plus, without duplication, for such period (i) consolidated interest expense, determined in accordance with GAAP; (ii) to the extent deducted in computing such Consolidated Net Income, the sum of all income, franchise or similar taxes; (iii) depreciation, depletion, amortization (including, without limitation, amortization of intangibles, deferred financing fees and any amortization included in pension or other employee benefit expenses) and all other non-cash items reducing Consolidated Net Income (including, without limitation, write-downs and impairment of property, plant, equipment and intangibles and other long-lived assets and the impact of purchase accounting) but excluding, in each case, non-cash charges in a period which reflect cash expenses paid or to be paid in another period); (iv) non-recurring restructuring costs, expenses and charges, including, without limitation, all business optimization costs and expenses, facility opening, pre-opening and closing and consolidation costs and expenses, advisory and professional fees and stay and retention bonuses; (v) any expenses, costs or charges related to any equity offering, Investment permitted under Section 7.02, acquisition, disposition, recapitalization or Indebtedness permitted to be incurred by the indenture (whether or not successful); (vi) all non-recurring or unusual losses, charges and expenses (and less all non-

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recurring or unusual gains); (vii) all non-cash charges and expenses; (viii) any debt extinguishment costs; (ix) any amount of asset retirement obligations expenses; (x) transaction costs, fees and expenses incurred during such period in connection with any acquisition or disposition not prohibited hereunder or any issuance of debt or equity securities by the Borrower or any of its Restricted Subsidiaries, in each case, for such expenses; (xi) net after-tax losses attributable to asset sales, and net after-tax extraordinary losses; (xii) (a) mark-to-market gains (and less any mark-to-market losses) relating to any Hedging Agreements permitted hereunder and (b) any mark-to-market losses attributed to short positions in any actual or synthetic forward sales contracts relating to coal or any other similar device or instrument or other instrument classified as a "derivative" pursuant to FASB ASC Topic No. 815, Derivatives and Hedging and (xiii) commissions, premiums, discounts, fees or other charges relating to performance bonds, bid bonds, appeal bonds, surety bonds, reclamation and completion guarantees and other similar obligations; provided that, with respect to any Restricted Subsidiary, such items will be added only to the extent and in the same proportion that the relevant Restricted Subsidiary’s net income was included in calculating Consolidated Net Income.
Consolidated Net Income” means, for any period, the net income (or loss) attributable to the Borrower and its Restricted Subsidiaries for that period, determined in accordance with GAAP, excluding, without duplication, (a) noncash compensation expenses related to common stock and other equity securities issued to employees, (b) extraordinary or non-recurring gains and losses, (c) income or losses from discontinued operations or disposal of discontinued operations or costs and expenses associated with the closure of any mines (including any reclamation or disposal obligations), (d) any non-cash impairment charges or asset write-off resulting from the application of ASC 320 Investments-Debt and Equity Securities, ASC 323 Investments-Equity Method and Joint Ventures, ASC 350 Intangibles—Goodwill and Other and ASC 360 Property, Plant and Equipment and any future or similar ASC standards relating to impairment, (e) net unrealized gains or losses resulting in such period from non-cash foreign currency remeasurement gains or losses, (f) net unrealized gains or losses resulting in such period from the application ASC 815 Derivatives and Hedging, in each case, for such period, (g) non-cash charges including non-cash charges due to cumulative effects of changes in accounting principles, and (h) any net income (or loss) of the Borrower or a Restricted Subsidiary for such period that is accounted for by the equity method of accounting to the extent included therein; plus, without duplication, any cash dividends and/or distributions or other payments that are actually received by the Borrower or a Restricted Subsidiary from any Unrestricted Subsidiary and/or Joint Venture during such period to the extent not already included therein.
Consolidated Net Tangible Assets” means, as of any particular time, the total of all the assets appearing on the most recent consolidated balance sheet prepared in accordance with GAAP of the Borrower and the Restricted Subsidiaries as of the end of the last fiscal quarter for which financial information is available (less applicable reserves and other properly deductible items) after deducting from such amount (i) all current liabilities, including current maturities of long-term debt and current maturities of obligations under capital leases (other than any portion thereof maturing after, or renewable or extendable at the option of the Borrower or the relevant Restricted Subsidiary beyond, twelve months from the date of determination); and (ii) the total of the net book values of all assets of the Borrower and its Restricted Subsidiaries properly classified as intangible assets under GAAP (including goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangible assets).;

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provided that “Consolidated Net Tangible Assets”, from the Seventh Amendment Effective Date until the consummation of each of the actions contemplated by the PRB-CO Joint Venture Transactions, shall exclude all assets to be contributed to PRB-CO Joint Venture in connection with the PRB-CO Joint Venture Transactions and, after the occurrence of each of the PRB-CO Joint Venture Transactions, shall exclude all assets of PRB-CO Joint Venture (or the Borrower’s equity interest therein) irrespective of whether the PRB-CO Joint Venture is consolidated for other financial statement purposes.
Consolidated Net Total Debt” means, as of any date of determination, (a) the aggregate stated balance sheet amount of all Indebtedness described in clauses (a), (b), (c), (f) and (g) (with respect to Indebtedness described in clauses (a), (b), (c) and (f)) of the definition of the term “Indebtedness” of Borrower and its Restricted Subsidiaries (for the avoidance of doubt, for this purpose, letters of credit will be deemed to have a principal amount equal to the amount drawn and not reimbursed thereunder, if any) determined on a consolidated basis in accordance with GAAP, minus (b) the aggregate amount of Unrestricted Cash included in the consolidated balance sheet of Borrower and its Restricted Subsidiaries as of such date (other than the proceeds of Incremental Debt to be incurred on such date of determination).
Contract” has the meaning specified in the definition of Excluded Assets.
Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
Controlled Subsidiary” means, with respect to any consent, waiver or right to terminate or accelerate the obligations under a Contract, any Subsidiary that the Borrower directly or indirectly Controls for purposes of the provision of such consent, waiver or exercise of such right to terminate or accelerate the obligations under such Contract.
Convertible Securities” means the preferred stock of the Borrower issued pursuant to the Plan of Reorganization on the Closing Date which shall be convertible into common stock of the Borrower, in an aggregate amount of at least $750,000,000.
Copyright Security Agreement” means theeach Copyright Security Agreement, substantially in the form attached to the Security Agreement dated the Closing Date, or such other form of copyright security agreement reasonably acceptable to the Administrative Agent and the Borrower, by certain Loan Parties in favor of the Collateral Trustee, for the benefit of the Secured Parties.
“Covered Party” has the meaning assigned to it in Section 10.26.
Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.

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Cumulative Amount” means at any time (the “Cumulative Amount Reference Time”), an amount (which shall not be less than zero) equal to, without duplication:
(i)    (x) the cumulative amount of Excess Cash Flow of the Borrower and its Restricted Subsidiaries for all fiscal years completed after the Closing Date (commencing with the portion of fiscal year 2017) and prior to the Cumulative Amount Reference Time, minus (y) the portion of such Excess Cash Flow that has been (or is required to be) applied after the Closing Date and prior to the Cumulative Amount Reference Time to the prepayment of Term Loans in accordance with Section 2.05(g) or any other pari passu Indebtedness (including the Priority Lien Notes) in accordance with the terms thereof (but excluding for purposes of this clause (y) any portion of such Excess Cash Flow with respect to which such prepayment has been waived by the Lender or other holder of such Indebtedness entitled thereto); plus
(ii)     the amount of any Declined Proceeds; minus
(iii)     the aggregate amount of any Restricted Payment made pursuant to Section 7.06(e)(ii) and any Investments made pursuant to Section 7.02(m)(ii) during the period commencing on the Closing Date and ending on or prior to the Cumulative Amount Reference Time (and, for purposes of this clause (iiiiv), without taking account of the intended usage of the Cumulative Amount at such Cumulative Amount Reference Time).
Cumulative Amount Reference Time” has the meaning specified in the definition of “Cumulative Amount”.
Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
Debtors” has the meaning specified in the preliminary statements to this Agreement.
Declined Proceeds” has the meaning specified in Section 2.05(n).
Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
Default Rate” means (a) when used with respect to outstanding principal of and interest on the Loans, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate with respect to the applicable Loans that are Base Rate Loans plus (iii) 2% per annum; provided, however, that with respect to a Eurocurrency Rate Loan, the Default Rate shall be an interest rate equal to (i) the Eurocurrency Rate otherwise applicable to such Eurocurrency Rate Loan plus (ii) the Applicable Rate with respect to the applicable Loans plus (iii) 2% per annum; (b) when used with respect to all other amounts (other than Letter of Credit Fees), a rate equal to (i) the Base Rate plus (ii) the Applicable Rate with respect to Term Loans that are Base Rate Loans plus (iii) 2% per annum; and (c) when used with respect to Letter of Credit Fees, a rate equal to (i) the Base Rate plus (ii) the Applicable Rate with respect to Incremental Revolving Loans that are Base Rate Loans plus (iii) 2% per annum.

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Defaulting Lender” means any Lender that (a) has failed to fund (i) any portion of the Loans, unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s reasonable 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) participations in L/C Obligations required to be funded by it hereunder within three Business Days of the date required to be funded by it hereunder, (b) has otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within three Business Days of the date when due, unless the subject of a good faith dispute, (c) has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding provided that 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 permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender or (d) has become the subject of a Bail-In Action. A Lender that has become a Defaulting Lender because of an event referenced in this definition may cure such status and shall no longer constitute a Defaulting Lender as provided in the last paragraph of Section 2.18.
Designated Letters of Credit” means letters of credit issued with respect to Mine reclamation, workers’ compensation and other employee benefit liabilities.
Designated Non-Cash Consideration” means the fair market value (as reasonably determined by the Borrower in good faith) of non-cash consideration received by the Borrower or any of its Restricted Subsidiaries in connection with a Disposition that is so designated as “Designated Non-Cash Consideration” minus the amount of cash or Cash Equivalents received in connection with a subsequent sale of such Designated Non-Cash Consideration.
Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) in one transaction or in a series of transactions, and whether effected pursuant to a division or otherwise, of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
Disqualified Equity Interest” means Equity Interests that by their terms (or by the terms of any security into which such Equity Interests are convertible, or for which such Equity Interests are exchangeable, in each case at the option of the holder thereof) or upon the happening of any event (i) mature or are mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or are required to be redeemed or redeemable at the option of the holder for consideration other than Qualified Equity Interests, or (ii) are convertible at the option of the holder into Disqualified Equity Interests or exchangeable for Indebtedness, in each case of clauses (i) and (ii) prior to the date that is 91 days after the final Maturity Date hereunder, except, in the case of clauses (i) and (ii), if as a result of a change of control or asset sale, so long as any rights of the holders thereof upon the occurrence of such a change of control or asset sale event are subject to the prior payment in full of all Obligations.

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Disqualified Institution” means (i) any financial institutions and entities identified by the Borrower to the Arrangers by name in writing on or prior to January 11, 2017 or as the Borrower and the Arrangers (or, after the Closing Date, the Borrower and the Administrative Agent) shall mutually agree after such date, (ii) any competitors of the Borrower or any of its Subsidiaries identified by the Borrower to the Administrative Agent and Lenders by name in writing and upon three (3) Business Days’ notice from time to time and (iii) affiliates of the foregoing that are readily identifiable solely on the basis of similarity of their names; provided that (x) “Disqualified Institutions” shall not include any bona fide diversified debt fund or a diversified investment vehicle that is engaged in the making, purchasing, holding or otherwise investing in, acquiring or trading commercial loans, bonds and similar extensions of credit in the ordinary course; (y) neither Administrative Agent nor Arranger shall have any responsibility for monitoring compliance with any provisions of this Agreement with respect to Disqualified Institutions and (z) updates to the Disqualified Lender schedule shall not retroactively invalidate or otherwise affect any (A) assignments or participations made to, (B) any trades entered into with or (C) information provided to any Person, in each case, before it was designated as a Disqualified Institution. It is acknowledged and agreed by the Borrower that the identity of Disqualified Institutions will be made available to the Lenders.
As of the Seventh Amendment Effective Date, no Persons have been identified to the Administrative Agent as Disqualified Institutions pursuant to clause (i) above.
Dollar Equivalent” means, at any date, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency, the equivalent amount thereof in Dollars as determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with such Alternative Currency.
Documentation Agents” has the meaning specified in the preamble heretoAgent” means, as of the Seventh Amendment Effective Date, Commerce Bank.
Dodd-Frank Act” means the Dodd–Frank Wall Street Reform and Consumer Protection Act (Pub.L. 111-203, H.R. 4173) signed into law on July 21, 2010, as amended from time to time.
Dollar” and “$” mean lawful money of the United States.
Domestic Subsidiary” means any Subsidiary that is organized under the laws of the United States or any State thereof or the District of Columbia; provided, that in no event shall any such Subsidiary that is a Subsidiary of a Foreign Subsidiary be considered a “Domestic Subsidiary” for purposes of the Loan Documents.
EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established

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in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
Eligible Assignee” means
(a)    with respect to the Term Loan Facility, (i) a Lender, (ii) an Affiliate of a Lender, (iii) an Approved Fund and (iv) any other Person (other than a natural person) approved by (A) the Administrative Agent and (B) unless an Event of Default under Sections 8.01(a), (f) and (g) has occurred and is continuing, the Borrower (each such approval not to be unreasonably withheld or delayed), provided that the Borrower shall be deemed to have approved such Person unless it shall have objected thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof; and
(b)    with respect to any Incrementalthe Revolving Facility, (i) an Incrementala Revolving Lender, (ii) an Affiliate of an Incrementala Revolving Lender and (iii) any other Person (other than a natural person) approved by (A) the Administrative Agent and each L/C Issuer and (B) unless an Event of Default under Sections 8.01(a), (f) and (g) has occurred and is continuing, the Borrower (each such approval not to be unreasonably withheld or delayed), provided that the Borrower shall be deemed to have approved such Person unless it shall have objected thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof;
provided, however, in each case, unless an Event of Default has occurred and is continuing, an Eligible Assignee shall include only a Lender, an Affiliate of a Lender or another Person, which, through its Lending Offices, is capable of lending to the Borrower, without the imposition of any additional Indemnified Taxes and assignment to such Person would not, at the time of such assignment, result in the Borrower becoming liable to pay any additional amount to such Person or any Governmental Authority pursuant to Section 3.01 or Section 3.04; provided further that no Defaulting Lender or Disqualified Institution shall be an Eligible Assignee.
Eligible L/C Issuer” means an Incrementala Revolving Lender, an Affiliate of an Incrementala Revolving Lender or any other financial institution, in each case, that has a long term unsecured debt investment grade rating, agrees to act as an L/C Issuer hereunder and, if replacing an existing L/C Issuer, agrees to replace the existing L/C Issuer in accordance with the terms of this Agreement, including having an L/C Issuance Limit at least equal to the L/C Issuance Limit of the replaced L/C Issuer unless otherwise agreed by the Borrower.
EMU Legislation” means the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.

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Environmental Laws” means any and all applicable current and future federal, state, local and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or other governmental restrictions or common law causes of action relating to (a) protection of the environment or to emissions, discharges, releases or threatened releases of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or wastes into the environment including ambient air, surface, water, ground water, or land, (b) human health as affected by Hazardous Materials, and (c) mining operations and activities to the extent relating to environmental protection or reclamation, including the Surface Mining Control and Reclamation Act, provided that “Environmental Laws” do not include any laws relating to worker or retiree benefits, including benefits arising out of occupational diseases.
Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
Environmental Permits” means any and all permits, licenses, registrations, notifications, exemptions and any other authorization required under any applicable Environmental Law.
Equity Interests” means, with respect to any Person, all of the shares of Capital Stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of Capital Stock of (or other ownership or profit interests in) such Person, and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination (but excluding any debt security that is convertible into, or exchangeable for, Equity Interests).
ERISA” means the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time, the regulations promulgated thereunder and any successor statute.
ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the failure to meet the minimum funding standards of Sections 412 or 430 of the Code or Sections 302 or 303 of ERISA with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Code or Section 302(c) of ERISA) or the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (c) a determination that

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any Pension Plan is, or is expected to be, in “at risk” status (as defined in Section 430 of the Code or Section 303 of ERISA); (d) a determination that any Multiemployer Plan is, or is expected to be, in “critical” or “endangered” status under Section 432 of the Code or Section 305 of ERISA; (e) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (f) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganizationinsolvent; (g) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (h) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (i) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate; (j) receipt from the IRS of notice of the failure of any Pension Plan (or any other Plan intended to be qualified under Section 401(a) of the Code) to qualify under Section 401(a) of the Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Code; (k) the imposition of a Lien pursuant to Section 430(k) of the Code or Section 303(k) of ERISA or a violation of Section 436 of the Code with respect to any Pension Plan; or (l) the occurrence of any Foreign Plan Event.
EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
Euro” and “EUR” means the lawful currency of the Participating Member States introduced in accordance with the EMU Legislation.
Eurocurrency Rate” means, for any Interest Rate Determination Date with respect to an Interest Period for a Eurocurrency Rate Loan, the rate per annum obtained by dividing (i) (a) the rate per annum equal to the rate determined by Administrative Agent to be the London interbank offered rate administered by the ICE Benchmark Administration (or any other person which takes over the administration of that rate) for deposits (for delivery on the first day of such period) with a term equivalent to such period in Dollars displayed on the ICE LIBOR USD page of the Reuters Screen (or any replacement Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Reuters, determined as ofLIBO Screen Rate at approximately 11:00 a.m. (, London, England time) on such Interest Rate Determination Date, or (b) in the event the rate referenced in the preceding clause (a) is not available, the rate per annum equal to the offered quotation rate to first class banks in the London interbank market by the Administrative Agent for deposits (for delivery on the first day of the relevant period) in Dollars of amounts in same day funds comparable to the principal amount of the applicable Loan of Administrative Agent, in its capacity as a Lender, for which the Eurocurrency Rate is then being determined with maturities comparable to such period as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date, by (ii) an amount equal to (a) one minus (b) the Applicable Reserve Requirement, two Business Days prior to the commencement of such

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Interest Period; provided that if the LIBO Screen Rate shall not be available at such time for such Interest Period (an “Impacted Interest Period”) then the Eurocurrency Rate shall be the Interpolated Rate. If, at any time, the Eurocurrency Rate would be less than zero, the Eurocurrency Rate shall be deemed to be zero at such time.
Eurocurrency Rate Loan” means a Term Loan or an Incrementala Revolving Loan that bears interest at a rate based on the Eurocurrency Rate.
Event of Default” has the meaning specified in Section 8.01.
Excess Cash Flow” means, for any period, an amount (if positive) equal to, without duplication, the amount for such period, as reflected in the Borrower’s and its Restricted Subsidiaries’ consolidated cash flow statement for the relevant period, of net cash provided by/used in operating activities (as determined in accordance with GAAP);
minus
the sum, without duplication, of the amounts for such period paid from Internally Generated Cash (except to the extent made using the Cumulative Amount) of:
(1)
scheduled repayments of Indebtedness for borrowed money (excluding repayments of revolving loans except to the extent the applicable revolving commitments are permanently reduced in connection with such repayments) and scheduled repayments of Capital Lease Obligations (excluding any interest expense portion thereof), provided that, for the avoidance of doubt, any borrowing under the ABL Facility or repayment thereof (without a corresponding reduction in the commitments thereunder) shall not increase or decrease Excess Cash Flow,
(2)
Consolidated Capital Expenditures,
(3)
Permitted Acquisitions and other Investments permitted pursuant to Section 7.02 (other than clauses (a) and (k) of Section 7.02),
(4)
pre-funding of royalty payments in the ordinary course of business,
(5)
distributions to non-controlling interests,
(6)
federal coal lease expenditures, and
(7)
net cash generated from proceeds of any Permitted Securitization Programs or loan proceeds from the ABL Facility (excluding interest costs).,
provided that, for the avoidance of doubt, any borrowing under a Permitted Securitization Program or repayment thereof (without a corresponding reduction in the commitments thereunder) shall not increase or decrease Excess Cash Flow.

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As used in clause (1) above, “scheduled repayments of Indebtedness” does not include (x) repurchases of Term Loans pursuant to Sections 2.19 or 2.20 and (y) repayments of Loans made with the cash proceeds of any Permitted Refinancing Indebtedness.
Excess Proceeds” has the meaning specified in Section 2.05(e).
Excluded Assets” means
(a) motor vehicles and other assets subject to certificates of title where the net book value of any such motor vehicle or other such asset individually is less than $1,000,000,
(b) commercial tort claims where the amount of the net proceeds claimed is less than $10,000,000,
(c) (i) any lease, license or other written agreement or written obligation (each, a “Contract”) and any leased or licensed asset under a Contract or asset financed pursuant to a purchase money financing Contract or Capital Lease Obligation, in each case that is the direct subject of such Contract (so long as such Contract is not entered into for purposes of circumventing or avoiding the collateral requirements of this Agreement), in each case only for so long as the granting of a security interest therein (x) would be prohibited by, cause a default under or result in a breach of such Contract (unless the Borrower or any Controlled Subsidiary may unilaterally waive it) or would give another Person (other than the Borrower or any Controlled Subsidiary) a right to terminate or accelerate the obligations under such Contract or to obtain a Lien to secure obligations owing to such Person (other than the Borrower or any Controlled Subsidiary) under such Contract (in each case, except to the extent any such prohibition is unenforceable after giving effect to applicable anti-assignment provisions of the UCC) or (y) would require obtaining the consent of any Person (other than the Borrower or any Controlled Subsidiary) or applicable Governmental Authority, except to the extent that such consent has already been obtained or (ii) any asset the granting of a security interest therein in favor of the Secured Parties would be prohibited by any applicable Requirement of Law (other than any Organizational Document) (except to the extent such prohibition is unenforceable after giving effect to applicable anti-assignment provisions of the UCC, other than proceeds thereof, the assignment of which is expressly deemed effective under the UCC notwithstanding such prohibitions),
(d) those assets with respect to which, in the reasonable judgment of the Administrative Agent and the Borrower, the costs of obtaining or perfecting such a security interest are excessive in relation to the benefits to be obtained by the Secured Parties therefrom or would result in materially adverse tax consequences to the Borrower or its Subsidiaries as reasonably determined by the Borrower in consultation with the Administrative Agent,
(e) any Letter of Credit Rights (as defined in the UCC) (other than to the extent a Lien thereon can be perfected by filing a customary financing statement),
(f) any right, title or interest in Receivables Assets sold, pledged or financed pursuant to a Permitted Securitization Program, and all of a Subsidiary’s and any Loan Party’s rights, interests and claims under a Permitted Securitization Program,

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(g) any real property and leasehold rights and interests in real property other than Material Real Property,
(h) any “intent-to-use” application for registration of a Trademark (as defined in the Security Agreement) filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. § 1051, prior to the filing and acceptance of a “Statement of Use” pursuant to Section 1(d) of the Lanham Act or an “Amendment to Allege Use” pursuant to Section 1(c) of the Lanham Act with respect thereto, and
(i) (i) any Equity Interests set forth on Schedule 1.01(c), (ii) any Equity Interest that is Voting Stock of a first-tier Foreign Subsidiary or FSHCO in excess of 65% of the Voting Stock of such Subsidiary, (iii) any Equity Interests in Gibraltar Holdings, Peabody International Investments, Inc., Peabody International Holdings, LLC and each other Subsidiary, whether now owned or hereafter acquired, substantially all of the assets of which consist of Equity Interests in Gibraltar Holdings and any successor to any of the foregoing, (iv) any Equity Interests of captive insurance subsidiaries and not-for-profit subsidiaries, (v) any Equity Interests in, or assets of, any Special Purpose Receivables Subsidiary (to the extent a pledge of the Equity Interests in such Special Purpose Receivables Subsidiary is prohibited under any Permitted Securitization Program entered into by such Special Purpose Receivables Subsidiary), (vi) margin stock and (vii) any Equity Interests in any Subsidiary that is not wholly-owned by the Borrower or any Restricted Subsidiary or in a Joint Venture, if the granting of a security interest therein (A) would be prohibited by, cause a default under or result in a breach of, or would give another Person (other than the Borrower or any Controlled Subsidiary) a right to terminate, under any Organizational Document, shareholders, joint venture or similar agreement applicable to such Subsidiary or Joint Venture or (B) would require obtaining the consent of any Person (other than the Borrower or any Controlled Subsidiary); provided that (i) 65% of the voting Equity Interests and 100% of the non-voting Equity Interests in Peabody Investments (Gibraltar) Limited (or any successor thereto) and (ii) the Equity Interests in the PRB-CO Joint Venture held (directly or indirectly) by the Borrower, in each case, shall not constitute Excluded Assets;
provided that the Collateral shall include the replacements, substitutions and proceeds of any of the foregoing unless such replacements, substitutions or proceeds also constitute Excluded Assets.
Excluded Flood Zone Property” means any “building”, “structure” or “mobile home” situated on any real property (each as defined in Regulation H as promulgated under the Flood Laws) located in a special flood hazard area and such real property under which such building, structure or mobile home stands.
Excluded Hedging Obligation” means, with respect to any Guarantor, (a) as it relates to all or a portion of the Guarantee of such Guarantor of Hedging Obligations, any Hedging Obligation if, and to the extent that, such Hedging Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Guarantor becomes effective with respect to such Hedging

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Obligation or (b) as it relates to all or a portion of the grant by such Guarantor of a security interest to secure any Hedging Obligation (or secure any Guarantee in respect thereof), any Hedging Obligation if, and to the extent that, the grant by such Guarantor of a security interest to secure such Hedging Obligation (or secure any Guarantee in respect thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the grant of such security interest becomes effective with respect to such Hedging Obligation. If a Hedging Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Hedging Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal. As used in this definition, “Hedging Obligation” shall mean, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) branch profits taxes or taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), in each case imposed (i) as a result of the Administrative Agent, such Lender or such L/C Issuer (or such other recipient) being organized under the laws of, or having its principal office in 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) other than in the case of an assignee pursuant to a request by the Borrower under Section 10.133.06, any United States federal withholding tax that is imposed on amounts payable to a Lender under the law applicable at the time such Lender acquires an interest in a Loan or Commitment (or designates a new Lending Office), except to the extent that such Lender (or its assignor, if any) was entitled, at the time of the designation of a new Lending Office (or assignment) to receive additional amounts from the applicable Loan Party with respect to such withholding tax pursuant to Section 3.01(a), (c) Taxes attributable to such Lender’s failure or inability to comply with Section 3.01(e) and (d) any taxes imposed under FATCA.
Existing Credit Agreement” means that certain Credit Agreement, dated September 24, 2013, by and among the Borrower, Citibank, N.A., as administrative agent, and the lenders party thereto (as amended by that certain Omnibus Amendment, dated as of February 5, 2015 and as otherwise amended, restated, supplemented or otherwise modified).
“Existing Letters of Credit” has the meaning set forth in the recitals hereto.
Existing Securitization Facility” means the accounts receivable securitization financing of P&L Receivables Company LLC existing as of the ClosingSeventh Amendment Effective Date, and any replacements, refinancings, amendments, restatements, renewals or extensions thereof, subject in each case to the restrictions set forth in the definition of Permitted Securitization Programs.
Exit” has the meaning specified in the preliminary statements to this Agreement.

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Facility” means the 2017 Incremental Revolving Facility, the Term Loan Facility, any other Incremental Facility and/or any Refinancing Facility, as the context may require.
FATCA” means Sections 1471 through 1474 of the 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), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any laws implementing anfiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement with respect to the foregoing, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federalcalculated by the NYFRB based on such day’s federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as soby depositary institutions, as determined in such manner as the NYFRB shall set forth on its public website from time to time, and published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, by the NYFRB as the effective federal funds rate; provided that if the Federal Funds Effective Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to the Administrative Agent on such day on such transactions as determined by the Administrative Agent.as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
“Federal Reserve Board” means the Board of Governors of the Federal Reserve System of the United States of America.
Fee Letters” means, collectively, (a) that certain Fee Letter, dated January 11, 2017, among the Borrower, Goldman Sachs Bank USA, JPMorgan Chase Bank, N.A., Credit Suisse Securities (USA) LLC, Credit Suisse AG, Cayman Islands Branch, Macquarie Capital (USA) Inc. and Macquarie Capital Funding LLC, (b) that certain Structuring Fee Letter, dated January 11, 2017, among the Borrower and Goldman Sachs Bank USA and (c) that certain Incrementalthe Fee Letters dated September 4, 2019, between the Borrower and each Arranger of the 2019 Refinancing Revolving Facility Fee Letter, dated as of the Second Amendment Effective Date, among the Borrower and Goldman Sachs Bank USA, respectively.
Fifth Amendment” means that certain Amendment No. 5 to Credit Agreement, dated as of June 27, 2018, by and among the Borrower, the other Reaffirming Parties (as defined therein), the Lenders party thereto and the Administrative AgentGoldman Sachs Bank USA as the administrative agent.
Fifth Amendment Effective Date” means June 27, 2018.
Finance Parties” has the meaning specified in Section 4.01(l).

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Financing Lease” means any lease of property, real or personal, the obligations of the lessee in respect of which are required in accordance with GAAP to be capitalized on a balance sheet of the lessee; provided that, any operating lease that is required to be treated as a capital lease in accordance with GAAP as a result of any Accounting Change shall not be deemed a Financing Lease for purposes of this Agreement.accounted for as a finance lease.
Financing Transactions” means, collectively, (a) the Refinancing, (b) the incurrence of the Loans under the Loan Documents, (c) the issuance of the Priority Lien Notes (and the assumption by the Borrower of the obligations thereunder), (d) the incurrence of any Permitted Securitization Program and (e) the payment of the fees and expenses incurred in connection with any of the foregoing clauses (a)-(d) hereof.
First Amendment” means that certain Amendment No. 1 to Credit Agreement, dated as of September 18, 2017, by and among the Borrower, the other Reaffirming Parties (as defined therein), the 2017 Refinancing Term Lenders (as defined therein) and the Administrative AgentGoldman Sachs Bank USA as the administrative agent.
First Amendment Effective Date” means September 18, 2017.
First Lien Leverage Ratio” means, as of any date of determination, the ratio of (i) Consolidated Net Total Debt (other than any portion of Consolidated Net Total Debt that is unsecured or is secured solely by a Lien that is junior to the Liens securing the Obligations) as of the date of the financial statements most recently delivered by the Borrower pursuant to Section 6.01(a) or (b), as applicable, to (ii) Consolidated EBITDA for the period of the four consecutive fiscal quarters ending as of the date of such financial statements; provided that, solely for purposes of calculating the First Lien Leverage Ratio in connection with Section 7.11 hereof, the aggregate amount of Unrestricted Cash deducted pursuant to clause (b) of the definition of Consolidated Net Total Debt shall not exceed $800 million800,000,000.
First Priority” means, with respect to any Lien purported to be created in any Collateral pursuant to any Security Document, that such Lien ranks first in priority to all other Liens, other than Liens permitted under clauses (b), (c), (d), (e), (f)(i), (f)(ii), (g), (p), (s), (t) (solely to the extent such Lien is pari passu with the Liens securing the Obligations and is subject to the Collateral Trust Agreement), and (w) (solely to the extent such Lien is pari passu with the Liens securing the Obligations and is subject to the Collateral Trust Agreement) and (z) (solely with respect to any ABL Priority Collateral) of Section 7.01.
Fixed Charge Coverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated EBITDA for the period of the four consecutive fiscal quarters ending as of the date of the financial statements most recently delivered by the Borrower pursuant to Section 6.01(a) or (b), as applicable, to (b) the aggregate Fixed Charges of the Borrower during such period.
Fixed Charges” means, with respect to any specified Person for any period, the sum of: (a) Interest Expense for such period; and (b) the product of (i) cash and non-cash dividends paid, declared, accrued or accumulated on any Disqualified Equity Interests of the Borrower or any Preferred Stock of a Restricted Subsidiary, except for dividends payable in the Borrower’s Qualified Equity Interests or paid to the Borrower or to a Restricted Subsidiary and (ii) a

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fraction, the numerator of which is one and the denominator of which is one minus the sum of the currently effective combined Federal, state, local and foreign tax rate applicable to the Borrower and its Restricted Subsidiaries.
Flood Laws” means, collectively, (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statute thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto, (iv) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (v) Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.
Foreign Lender” means any Lender that is not a “United States Person” as defined in Section 7701(a)(30) of the Code.
Foreign Plan” means any employee benefit plan, program, policy, arrangement or agreement maintained or contributed to by any Loan Party or any of their respective Subsidiaries with respect to employees employed outside the United States and paid through a non-United States payroll.
Foreign Plan Event” means, with respect to any Foreign Plan, (a) the existence of unfunded liabilities in excess of the amount permitted under any applicable law, or in excess of the amount that would be permitted absent a waiver from a Governmental Authority, (b) the failure to make the required contributions or payments, under any applicable law, within the time permitted by Law for such contributions or payments, (c) the receipt of a notice from a Governmental Authority relating to the intention to terminate any such Foreign Plan or to appoint a trustee or similar official to administer any such Foreign Plan, or alleging the insolvency of any such Foreign Plan, (d) the incurrence of any liability by any Loan Party under applicable law on account of the complete or partial termination of such Foreign Plan or the complete or partial withdrawal of any participating employer therein, in each case, which could reasonably be expected to have a Material Adverse Effect, or (e) the occurrence of any transaction with respect to a Foreign Plan that is prohibited under any applicable law and that could reasonably be expected to result in the incurrence of any liability by any Loan Party, or the imposition on any Loan Party of any fine, excise tax or penalty with respect to a Foreign Plan resulting from any noncompliance with any applicable law, in each case which could reasonably be expected to have a Material Adverse Effect.
Foreign Subsidiary” means a Subsidiary that is organized under the laws of a jurisdiction other than the United States or any State thereof or the District of Columbia and any Subsidiary thereof.
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
Fourth Amendment” means that certain Amendment No. 4 to Credit Agreement, dated as of April 11, 2018, by and among the Borrower, the other Reaffirming Parties (as defined

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therein), the 2018 Refinancing Term Lenders (as defined therein) and the Administrative AgentGoldman Sachs Bank USA as the administrative agent.
Fourth Amendment Effective Date” means April 11, 2018.
FRB” means the Board of Governors of the Federal Reserve System of the United States.
Fronting Fee” has the meaning specified in Section 2.03(j).
FSHCO” means any Domestic Subsidiary formed or acquired on or after the ClosingSeventh Amendment Effective Date substantially all of the assets of which consist of the Equity Interests of one or more Foreign Subsidiaries.
Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.
GAAP” means generally accepted accounting principles, which are applicable to the circumstances as of the date of determination. The sources of accounting principles and the framework for selecting the principles used in the preparation of financial statements of nongovernmental entities that are presented in conformity with GAAP in the United States, are set forth in the Financial Accounting Standards Board’s Accounting Standards Codification.
Gibraltar Holdings” means Peabody Global Holdings (Gibraltar) Limited, LLC, or any successor entity (including via redomiciliation) that directly holds the Capital Stock of Peabody Investments (Gibraltar) Limited.
Gibraltar Pledge Agreement” means the Share Charge, dated as of the Closing Date, between Gibraltar Holdings, Peabody Investments (Gibraltar) Limited and the Collateral Trustee, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
Governmental Authority” means the government of the United States or any other nation, or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
Guarantee” means, as to any Person (the “guaranteeing person”), any obligation of (a) the guaranteeing person or (b) another Person (including, without limitation, any bank under any letter of credit) to the extent the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation in order to induce the creation of such obligation, in either case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other obligations (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, reimbursement obligations under letters of credit and any obligation of the guaranteeing person, whether or not contingent,

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(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, 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 owner of any such primary obligation against loss in respect thereof; provided, however, that the term Guarantee obligation shall not include (i) indemnification or reimbursement obligations under or in respect of Surety Bonds or Designated Letters of Credit, (ii) ordinary course performance guarantees by any Loan Party of the obligations (other than for the payment of borrowed money) of any other Loan Party and (iii) endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith. The term “Guarantee” as a verb has a corresponding meaning.
Guarantors” means any Restricted Subsidiary that is a Domestic Subsidiary (other than those entities to be merged, dissolved or consolidated in connection with the Permitted Restructuring Transactions within thirty (30) days following the Closing Date) and each other Subsidiary, whether now owned or hereafter formed or acquired, that directly holds Equity Interests in Gibraltar Holdings at any time; provided, that such term shall not include (a) any Subsidiary not wholly-owned, directly or indirectly, by the Borrower to the extent (but only so long as) it is prohibited by the terms of any Contractual Obligation (including pursuant to any Organizational Documents of such Subsidiary) from guaranteeing the Secured Obligations or any other obligations or liabilities guaranteed pursuant to the terms of the Guaranty (it being understood that, for purposes of this definition, the terms of any Contractual Obligation shall be deemed to prohibit such Guarantee if it would constitute a breach or default under or result in the termination of or require the consent of any Person (other than the Borrower or any Controlled Subsidiary, or the Administrative Agent or the Lenders in their respective capacities as such) under the security, agreement, instrument or other undertaking giving rise to such Contractual Obligation); provided further, that such Contractual Obligation is not and was not created in contemplation of this definition, and provided further, that this clause (a) shall not be deemed to exclude (or release) any Domestic Subsidiary which is a Guarantor in the case of a disposition of a portion of the Equity Interests in such Guarantor as a result of (i) the disposition or issuance of Equity Interests of such Domestic Subsidiary in either case to an Affiliate that is not the Borrower or a Restricted Subsidiary, (ii) any transaction entered into primarily in contemplation of such Domestic Subsidiary’s ceasing to constitute a Loan Party or (iii) the disposition or issuance of Equity Interests of such Domestic Subsidiary for materially less than the fair market value of such shares as reasonably determined by the Borrower), (b) any FSHCO, (c) any Domestic Subsidiary that is a Subsidiary of any Foreign Subsidiary; provided, however, that clauses (b) and (c) shall not apply to any Subsidiary,

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whether now owned or hereafter formed or acquired, that directly holds Equity Interests in Gibraltar Holdings, or (d) any Special Purpose Receivables Subsidiaries and captive insurance entities. The Guarantors as of the ClosingSeventh Amendment Effective Date are the Subsidiaries of the Borrower listed on Schedule 1.01(a). For the avoidance of doubt and notwithstanding anything herein or in any other Loan Document to the contrary, (x) no Foreign Subsidiary now owned or hereafter formed or acquired shall be a Guarantor (other than a Foreign Subsidiary hereafter formed or acquired that directly holds Equity Interests in Gibraltar Holdings) and (y) Gibraltar Holdings shall not be a Guarantor.
Guaranty” means that certain Guarantee of the Secured Obligations dated as of the Closing Date and made by the Guarantors in favor of the Administrative Agent and the Secured Parties, substantially in the form of Exhibit F, including any supplement, accession, assumption or joinder thereto, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
Hazardous Materials” means (i) any explosive or radioactive substances or wastes and (ii) any hazardous or toxic substances, materials or wastes, defined or regulated as such in or under, or that could reasonably be expected to give rise to liability under, any applicable Environmental Law, including, without limitation, asbestos, polychlorinated biphenyls, urea-formaldehyde insulation, gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products or any coal ash, coal combustion by-products or waste, boiler slag, scrubber residue or flue desulphurization residue.
Hedge Bank” has the meaning specified in the definition of “Secured Hedging Agreement”.
Hedging Agreement” means (i) any interest rate swap agreement, interest rate cap agreement, interest rate future agreement, interest rate collar agreement, interest rate hedge agreement or other similar agreement or arrangement designed to protect against or mitigate interest rate risk, (ii) any foreign exchange forward contract, currency swap agreement, futures contract, option contract, synthetic cap or other agreement or arrangement designed to protect against or mitigate foreign exchange risk or (iii) any commodity or raw material, including coal, futures contract, commodity hedge agreement, option agreement, any actual or synthetic forward sale contract or other similar device or instrument or any other agreement designed to protect against or mitigate raw material price risk (which shall for the avoidance of doubt include any forward purchase and sale of coal for which full or partial payment is required or received).
Hedging Obligations” means all debts, liabilities and obligations of the Borrower or any Restricted Subsidiary in respect of any Hedging Agreement.
Hedging Termination Value” means, in respect of any one or more Hedging Agreement, after taking into account the effect of any valid netting agreement relating to such Hedging Agreements, (a) for any date on or after the date such Hedging Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Hedging Agreements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedging

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Agreements (which may include a Lender, the Administrative Agent or any Affiliate of a Lender or the Administrative Agent) (it being understood that any such termination values and marked-to-market values shall take into account any assets posted as collateral or security for the benefit of a party to the Hedging Agreement).
Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under the laws applicable to any Lender which are presently 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 nonusurious interest rate than applicable laws now allow.
Honor Date” shall have the meaning specified in Section 2.03(c)(i).
“Impacted Interest Period” has the meaning specified in the definition of “Eurocurrency Rate”
Incremental Amendment” has the meaning specified in Section 2.15(g).
Incremental Debt” means, at any time, all Incremental NotesEquivalent Debt and Incremental Facilities outstanding.
Incremental Debt Cap” means, as determined with respect to any Incremental Debt to be incurred, an amount equal to the sum of (a) $300,000,000 and (b) (i) if such Incremental Debt is (or is intended to be) secured by the Collateral on a pari passu basis, an additional amount if, after giving effect to the incurrence of such Incremental Debt and any acquisition consummated in connection therewith, the First Lien Leverage Ratio (calculated assuming all Commitments under the Incremental Revolving FacilitiesFacility are fully drawn) is equal to or less than 1.75 to 1.00 on a Pro Forma Basis and (ii) if such Incremental Debt is secured by the Collateral on a junior-lien basis or unsecured, an additional amount if, after giving effect to the incurrence of such Incremental Debt and any acquisition consummated in connection therewith, the Total Leverage Ratio (calculated assuming all Commitments under the Incremental Revolving FacilitiesFacility are fully drawn) is equal to or less than 2.50:1.00 on a Pro Forma Basis.
Incremental Facility” has the meaning specified in Section 2.15(a).
Incremental Facility Effective Date” has the meaning specified in Section 2.15(c).
Incremental Facility Request” has the meaning specified in Section 2.15(a).
Incremental Lender” means any Incremental Term Lender or any Incremental Revolving Lender.
Incremental Loan” means, with respect to any Incremental Facility, an advance made by any Incremental Lender under such Incremental Facility.
Incremental Notes” has the meaning specified in Section 7.03(m).

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Incremental Revolving Borrowing” means a borrowing consisting of simultaneous Incremental Revolving Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Incremental Revolving Lenders pursuant to Section 2.01(b).
Incremental Revolving Commitment” means, as to each Incremental Revolving Lender, its obligation to (a) make Incremental Revolving Loans to the Borrower pursuant to Section 2.01(b) and (b) purchase participations in L/C Obligations, in an aggregate principal amount at any one time outstanding under such clauses (a) and (b) not to exceed the amount set forth (x) in the case of the 2017 Incremental Revolving Facility, opposite such Lender’s name on Schedule 1 to the Second Amendment under the caption “2017 Incremental Revolving Commitment” or on Schedule 1 to the Third Amendment under the caption “2017 Incremental Revolving Commitment”, as applicable, (y) in the case of any other Incremental Revolving Facility, in the applicable Incremental Amendment or (z) if applicable, in any case, in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate amount of the Incremental Revolving Commitments as of the Third Amendment Effective Date is $350,000,000.
Incremental Revolving Facility” has the meaning specified in Section 2.15(a).
Incremental Revolving Facility Maturity Date” means November 17, 2020; provided, however, that, if such date is not a Business Day, the Incremental Revolving Facility Maturity Date shall be the preceding Business Day.
Incremental Revolving Lender” means any Person who provides an Incremental Revolving Facility.
Incremental Revolving Loan” means an advance made by an Incremental Revolving Lender under an Incremental Revolving Facility.
Incremental Term Facility” has the meaning specified in Section 2.15(a).
Incremental Term Lender” means any Person who provides an Incremental Term Facility.
Incremental Term Loan” means an advance made by an Incremental Term Lender under an Incremental Term Facility.
Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a)    all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments (other than any obligations in respect of performance bonds bid bonds, appeal bonds, surety bonds, reclamation bonds and completion guarantees, bank guarantees and similar obligations under any Mining Law or Environmental Law or with respect to worker’s compensation benefits);

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(b)    all obligations of such Person arising under letters of credit, bankers’ acceptances or similar instruments issued for the account of such Person (solely to the extent such letters of credit, bankers’ acceptances or other similar instruments have been drawn and remain unreimbursed);
(c)    net obligations of such Person under any Hedging Agreement;
(d)    all obligations of such Person to pay the deferred purchase price of property or services (other than (i) trade accounts payable and accrued expenses incurred in the ordinary course of business, (ii) obligations under federal coal leases, (iii) obligations under coal leases which may be terminated at the discretion of the lessee and (iv) obligations for take-or-pay arrangements);
(e)    indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
(f)    Capital Lease Obligations (other than obligations in connection with the IRBs); and
(g)    all Guarantees of such Person in respect of any of the foregoing Indebtedness of any other Person (but excluding any performance and completion Guarantees of such Person);
provided that in no event shall Indebtedness include (i) asset retirement obligations or (ii) obligations (other than obligations with respect to Indebtedness for borrowed money or other Indebtedness evidenced by loan agreements, bonds, notes or debentures or similar instruments or letters of credit (solely to the extent such letters of credit or other similar instruments have been drawn and remain unreimbursed) (or, without duplication, reimbursement agreements in respect thereof)) related to surface rights under an agreement for the acquisition of surface rights for the production of coal reserves in the ordinary course of business in a manner consistent with historical practice of the Borrower and its Subsidiaries.
The amount of any net obligation under any Hedging Agreement on any date shall be deemed to be the Hedging Termination Value thereof as of such date. The amount of any Indebtedness issued with original issue discount shall be deemed to be the face amount of such Indebtedness less the remaining unamortized portion of the original issue discount of such Indebtedness. The amount of any Capital Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date. The amount of any indebtedness of a Joint Venture secured by a Lien on property owned or being purchased by the Borrower or its Restricted Subsidiaries as of any date shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the indebtedness that is secured by such Lien and (b) the maximum amount for which the Borrower or its Restricted Subsidiaries may be liable (which may be determined with reference to the fair market value of the property securing such indebtedness as reasonably determined by the Borrower in good faith) pursuant to the terms of such indebtedness. Except as set forth in the sentence immediately above, the amount of indebtedness of any Joint Venture, which is attributable to the Borrower or any Restricted

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Subsidiary shall be deemed to equal the amount of indebtedness that would be attributable to the Borrower or any Restricted Subsidiary in accordance with GAAP.
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 of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
Indemnitees” has the meaning specified in Section 10.04(b).
Information” has the meaning specified in Section 10.07.
Intercreditor Agreements” means each of the (a) Collateral Trust Agreement and (b) any ABL Intercreditor Agreement.
Interest Expense” means, for any period, the consolidated interest expense (net of any interest income) of the Borrower and its Restricted Subsidiaries, plus, to the extent not included in such consolidated interest expense, and to the extent incurred, accrued or payable by the Borrower or its Restricted Subsidiaries, without duplication, (i) interest expense attributable to Financing Leases, (ii) amortization of debt discount and debt issuance costs, (iii) capitalized interest, (iv) non-cash interest expense, (v) any of the above expenses with respect to Indebtedness of another Person Guaranteed by the Borrower or any of its Restricted Subsidiaries and (vi) any interest, premiums, fees, discounts, expenses and losses on the sale of accounts receivable (and any amortization thereof) payable by the Borrower or any Restricted Subsidiary in connection with a receivables financing permitted hereunder, and any yields or other charges or other amounts comparable to, or in the nature of, interest payable by the Borrower or any Restricted Subsidiary under any receivables financing, but excluding (a) amortization of deferred financing charges incurred in respect of the Priority Lien Notes, the Loans, any ABL Facility and any Indebtedness described in clause (a) of the definition thereof, and (b) the write off of any deferred financing fees or debt discount, all as determined on a consolidated basis and in accordance with GAAP. Interest Expense shall be determined for any period after giving effect to any net payments made or received and costs incurred by the Borrower and its Restricted Subsidiaries with respect to any related interest rate Hedging Agreement permitted hereunder.
Interest Payment Date” means, (a) as to any Eurocurrency Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date; provided, however, that if any Interest Period exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates and (b) as to any Base Rate Loan, the last Business Day of each March, June, September and December and the Maturity Date.
Interest Period” means, as to each Eurocurrency Rate Loan, the period commencing on the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan and ending on the date one, two, three or six months thereafter, or, if available to all Lenders making such Eurocurrency Rate Loan, twelve months thereafter (or such shorter period as may be agreed by the relevant Lenders and the Administrative Agent), as selected by the Borrower in its Borrowing Notice, or, as otherwise contemplated by the first proviso of Section 2.02(a); provided that:

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(i)    any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the immediately preceding Business Day;
(ii)    any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clause (iii) below, end on the last Business Day of a calendar month; and
(iii)    with respect to each Facility, no Interest Period shall extend beyond its applicable Maturity Date or Revolving Facility Maturity Date, as applicable.
Interest Rate Determination Date” means, with respect to any Interest Period, the date that is two Business Days prior to the first day of such Interest Period.
Internally Generated Cash” means, with respect to any period, any cash of the Borrower or any Restricted Subsidiary generated during such period, excluding Net Proceeds, Net Insurance/Condemnation Proceeds and any cash that is generated from an incurrence of Indebtedness, an issuance of Equity Interests or a capital contribution.
“Interpolated Rate” means, at any time, for any Interest Period, the rate per annum (rounded to the same number of decimal places as the LIBO Screen Rate) 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 LIBO Screen Rate for the longest period for which the LIBO Screen Rate is available) that is shorter than the Impacted Interest Period; and (b) the LIBO Screen Rate for the shortest period (for which that LIBO Screen Rate is available) that exceeds the Impacted Interest Period, in each case, at such time.
Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Capital Stock or other securities of another Person, (b) a loan, advance (excluding intercompany liabilities incurred in the ordinary course of business in connection with the cash management operations of the Borrower and its Subsidiaries) or capital contribution to, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit. For purposes of covenant compliance, the amount of any Investment shall be (i) the amount actually invested, as determined immediately prior to the time of each such Investment, without adjustment for subsequent increases or decreases in the value of such Investment minus (ii) the amount of dividends or distributions received in connection with such Investment and any return of capital and any payment of principal received in respect of such Investment that in each case is received in cash or Cash Equivalents.
IP Rights” has the meaning specified in Section 5.18.

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IP Security Agreements” means the Copyright Security AgreementAgreements, the Trademark Security Agreement and the Patent Security Agreement.
IRBs” means the City of St. Louis, Missouri Taxable Industrial Development Revenue Bonds (Peabody Energy Corporation Project), Series 2010, in an aggregate principal amount not to exceed $60,000,000, as evidenced by that certain Trust Indenture, dated as of March 1, 2011, between the City of St. Louis, Missouri and U.S. Bank, National Association, St. Louis, Missouri.
IRS” means the United States Internal Revenue Service.
ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (as the same may be amended from time to time).
Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the applicable L/C Issuer and the Borrower (or any Subsidiary) or in favor the applicable L/C Issuer and relating to any such Letter of Credit.
Joint Venture” means any Person (a) other than a Subsidiary in which the Borrower or its Subsidiaries hold an ownership interest or(a) that is not a Subsidiary and (b) which is an unincorporated joint venture of the Borrower or anysuch Subsidiary is a general partner or a joint venturer; provided, however, that Middlemount Coal Pty Ltd shall be considered a Joint Venture for this definition.
Junior Collateral Trustee” means Wilmington Trust, National Association, in its capacity as Junior Collateral Trustee pursuant to the Collateral Trust Agreement, together with its successors and assigns in such capacity.
Junior Lien Indebtedness” means any Indebtedness (other than any ABL Facility) that is secured by a junior Lien to the Lien securing the Secured Obligations and that was permitted to be incurred and so secured hereunder.
Laws” means, as to any Person, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, regulations, ordinances, codes, and determinations of arbitrators or courts or other Governmental Authorities, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
L/C Advance” means, with respect to each Incremental Revolving Lender, such Incremental Revolving Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage. All L/C Advances shall be denominated in Dollars.
L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed in accordance with Section 2.03(c) or refinanced as a Borrowing. All L/C Borrowings shall be denominated in Dollars.

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L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
L/C Issuance Limit” means, at the time of the issuance of a Letter of Credit by the applicable L/C Issuer, with respect to (a) each 2017 L/C Issuer (as defined in the Second Amendment), in its capacity as an L/C Issuer, the amount set forth opposite its name on Schedule 2I to the SecondSeventh Amendment (or such other amount as may be agreed to in writing by such 2017 L/C Issuer and the Borrower from time to time with prompt notice to the Administrative Agent), (b) each 2017 L/C Issuer (as defined in the Third Amendment), in its capacity as an L/C Issuer, the amount set forth opposite its name on Schedule 2 to the Third Amendment (or such other amount as may be agreed to in writing by such 2017 L/C Issuer and the Borrower from time to time with prompt notice to the Administrative Agent), or (c) any other L/C Issuer, such amount as may be agreed to by such L/C Issuer and the Borrower in writing from time to time with prompt notice to the Administrative Agent.
L/C Issuer” means each 2017 L/C Issuer (as defined in the Second Amendment) and each 2017 L/C Issuer (as defined in the Third Amendment)JPMorgan Chase Bank, N.A., Goldman Sachs Bank USA, Credit Suisse AG, Cayman Islands Branch, Bank of Montreal, Chicago Branch, Commerce Bank, Deutsche Bank AG New York Branch and Bank of America, N.A., each in its capacity as issuer of Letters of Credit hereunder, and such other Incremental Revolving Lender or Incremental Revolving Lenders that agree to act as L/C Issuer at the request of the Borrower, and any successor issuer of Letters of Credit hereunder or any of their respective Affiliates, in each case in its capacity as issuer of any Letter of Credit. Each L/C Issuer may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such L/C Issuer , in which case the term “L/C Issuer” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate (it being agreed that such L/C Issuer shall, or shall cause such Affiliate to, comply with the requirements of Section 2.03 with respect to such Letters of Credit).
L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.08. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
Lender” has the meaning specified in the introductory paragraph hereto and includes any (a) Term Lender, (b) Revolving Lender, (c) Incremental Lender, and (cd) Refinancing Facility Lender.
Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.

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Letter of Credit” means a letter of credit or Bank Guarantee issued hereunder. Letters of Credit may be issued in Dollars or in an Alternative Currency.
Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by any L/C Issuer.
Letter of Credit Expiration Date” means the day that is five days prior to the Incremental Revolving Facility Maturity Date then in effect (or, if such day is not a Business Day, the preceding Business Day) (or such later date referred to in Section 2.03(a)(ii)(B)).
Letter of Credit Fee” has the meaning specified in Section 2.03(i).
“LIBO Screen Rate” means, for any day and time, with respect to any Borrowing of Eurocurrency Rate Loans for any Interest Period, the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for Dollars for a period equal in length to such Interest Period as displayed on such day and time on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, 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, provided that if the LIBO Screen Rate shall be less than zero, such rate shall be deemed to zero for the purposes of this Agreement.
Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Financing Lease having substantially the same economic effect as any of the foregoing).
Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of a Term Loan, Revolving Loan, Letter of Credit, Incremental Loan or Refinancing Loan.
Loan Documents” means this Agreement, the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, the Sixth Amendment, the Seventh Amendment, the Collateral Trust Agreement, the CTA Amendment (as defined in the Fourth Amendment), Amendment No. 2 to Collateral Trust Agreement, dated as of July 19, 2018, each Note, the Issuer Documents, the Fee Letters, the Guaranty, and each Security Document and any ABL Intercreditor Agreement.
Loan Parties” means, collectively, the Borrower and each Guarantor.
Material Adverse Effect” means a material adverse effect upon (a) the business, assets, operations, property or condition (financial or otherwise) of the Borrower and its Restricted Subsidiaries taken as a whole, (b) the ability of the Borrower and the Guarantors, taken as a whole, to perform their payment obligations under this Agreement or the Guaranty or (c) the

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validity or enforceability of this or any of the other Loan Documents or the rights or remedies of the Agents, the Collateral Trustee, the Arrangers or the Lenders hereunder or thereunder.
Material Real Property” means (a) any fee owned real property interest held by a Loan Party in an active Mine or any leasehold interest in real property of a Loan Party in an active Mine, (b) any real property owned by a Loan Party or in which a Loan Party has a leasehold interest located on a Reserve Area on the ClosingSeventh Amendment Effective Date that has a net book value in excess of $10,000,000, (c) any real property acquired or otherwise owned by a Loan Party or in which a Loan Party acquires a leasehold interest after the ClosingSeventh Amendment Effective Date located on a Reserve Area that has a total net book value in excess of $25,000,000 and (d) any other fee owned real property interest held by a Loan Party (other than the types of property described in clauses (a) through (c) above) with a total net book value in excess of $10,000,000 as of the date of acquisition of such real property; provided that Material Real Property shall not include (x) any real property that is identified on Schedule 1.01(d), (y) any leasehold interests of a Loan Party in commercial real property constituting offices of the Borrower and its Subsidiaries or (z) any Excluded Flood Zone Property; provided that the aggregate total net book value of all Excluded Flood Zone Property acquired after the Fourth Amendment Effective DateApril 11, 2018 does not exceed $50,000,000 in the aggregate as of the date of determination; provided further that, any future coal reserve or access to a coal reserve (x) that is fee owned by a Loan Party or in which a Loan Party has a leasehold interest and (y) that is located adjacent to, contiguous with, or in close proximity to, both geographically and geologically (according to reasonable standards used in the mining industry) an active Mine or Reserve Area, may, in the reasonable discretion of the Administrative Agent (in consultation with the Borrower) and by notice to the Collateral Trustee, be deemed part of an active Mine or Reserve Area and, as a result, a “Material Real Property” in the future.
Maturity Date” means March 31, 2025 (and, with respect to (x) an Incremental Term Facility or Refinancing Term Facility, the date on which such Facility shall become due and payable in full hereunder, as specified in the applicable Incremental Amendment or other amendment hereto and (y) an Incremental Revolving Facility or Refinancing Revolving Facility, the Incremental Revolving Facility Maturity Date with respect thereto or, in the case of a Refinancing Revolving Facility, the date on which such Refinancing Revolving Facility shall become due and payable in full hereunder, in each case, as specified in the applicable Incremental Amendment or other amendment hereto); provided, however, that, if such date is not a Business Day, the Maturity Date shall be the preceding Business Day.
MEPP Claim” means, collectively, the claims of the United Mine Workers of America 1974 Pension Plan, including (a) proof of claim number 4722 and (b) any other claim related to any withdrawal liability under U.S.C. § 1392(c).
Metropolitan Collieries Disposition” means the sale of substantially all of the assets of (or all of the Equity Interests of) Metropolitan Collieries Pty Ltd to the extent permitted by Section 7.05.
Mine” means any excavation or opening into the earth in the United States now and hereafter made from which coal or other minerals are or can be extracted on or from any of the real properties in which any Loan Party holds an ownership, leasehold or other interest.

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Minimum Cash Balance” means at least $600,000,000 in Unrestricted Cash on hand of the Borrower and its Restricted Subsidiaries on the effective date of the Plan of Reorganization after giving effect to any distributions paid to certain holders of claims in accordance with the Plan of Reorganization on the Closing Date.
Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
Mortgage” means any mortgages, deeds of trust or similar document (including any fixture filings whether recorded as part of such mortgages or deeds of trust or as separate instruments to the extent necessary in any particular state), substantially in the form of Exhibit J or any such other form reasonably acceptable to the Administrative Agent and the Borrower.
Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
Net Insurance/Condemnation Proceeds” means an amount equal to: (i) any cash payments or proceeds received by the Borrower or any of its Restricted Subsidiaries (a) under any casualty insurance policy in respect of a covered loss thereunder or (b) as a result of the taking of any assets of the Borrower or any of its Restricted Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of any such assets to a purchaser with such power under threat of such a taking, minus (ii) (a) any actual and reasonable costs incurred by the Borrower or any of its Restricted Subsidiaries in connection with the adjustment or settlement of any claims of the Borrower or such Restricted Subsidiary in respect thereof, and (b) any bona fide direct costs incurred in connection with any sale of such assets as referred to in clause (i)(b) of this definition, including income taxes payable as a result of any gain recognized in connection therewith.
Net Proceeds” means, with respect to any Disposition pursuant to Sections 7.05(c), 7.05(k), 7.05(l) and 7.05(q), the sum of (a) cash and Cash Equivalents actually received by the Borrower or any Restricted Subsidiary in connection with such Disposition (including any cash received by way of deferred payment (excluding, for avoidance of doubt, royalty payments customary in the mining industry) pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) minus (b) solely with respect to Dispositions of assets not constituting Collateral, the sum of (i) (A) the principal amount, premium or penalty, if any, interest and other amounts of any Indebtedness that is secured by such asset and that is required to be repaid in connection with such Disposition (other than Indebtedness under the Loan Documents) or (B) any other required debt payments or required payments of other obligations relating to the Disposition, in each case, with the proceeds thereof, (ii) the reasonable or customary out-of-pocket fees and expenses incurred by the Borrower or its Restricted Subsidiaries in connection with such Disposition (including attorneys’ fees, accountants’ fees, investment banking fees, real property related fees and charges and brokerage and consultant fees), (iii) all Taxes required to be paid or accrued or reasonably estimated to be required to be paid or accrued as a result thereof, (iv) in the case of any Disposition by a non-wholly-owned Restricted Subsidiary or non-wholly-owned Unrestricted Subsidiary, the pro rata portion of the Net Proceeds thereof (calculated without regard to this clause (iv)) attributable to minority or

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other third party interests and not available for distribution to or for the account of the Borrower or a wholly-owned Restricted Subsidiary as a result thereof and (v) the amount of any reasonable reserve established in accordance with GAAP against any adjustment to the sale price or any liabilities (x) related to any of the applicable assets and (y) retained by the Borrower or any Subsidiary including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations (however, the amount of any subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Proceeds of such Disposition occurring on the date of such reduction).
Non-Recourse Debt” means Indebtedness (a) as to which neither the Borrower nor any of its Restricted Subsidiaries (i) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness) other than a non-recourse pledge of the Equity Interests of any Unrestricted Subsidiary to the extent such Equity Interests do not constitute Collateral, (ii) is directly or indirectly liable (as a guarantor or otherwise) other than by virtue of a non-recourse pledge of the Equity Interests of any Unrestricted Subsidiary to the extent such Equity Interests do not constitute Collateral, or (iii) constitutes the lender; (b) no default with respect to which (including any rights that the holders thereof may have to take enforcement action against any Unrestricted Subsidiary) would permit (upon notice, lapse of time or both) any holder of any other Indebtedness (other than the Obligations) of the Borrower or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity; and (c) as to which the lenders thereunder will not have any recourse to the Capital Stock or assets of the Borrower or any of its Restricted Subsidiaries (other than solely the Equity Interests of any Unrestricted Subsidiary to the extent such Equity Interests do not constitute Collateral).
Note” means a promissory note made by the Borrower in favor of a Lender and its registered assigns evidencing Term Loans or Incremental Revolving Loans made by such Lender, substantially in the form of Exhibit C-1 or Exhibit C-2, as applicable.
“NYFRB” means the Federal Reserve Bank of New York.
“NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so determined be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
Obligations” means all advances to, and debts, liabilities and obligations (other than, for the avoidance of doubt, Hedging Obligations or Cash Management Obligations) of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and

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fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
Open Market Purchase” has the meaning specified in Section 2.20(a).
Organizational 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-US jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
Other Connection Taxes” means with respect to the Administrative Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, Taxes imposed as a result of a present or former connection between such party and the jurisdiction imposing such Tax (other than connections arising solely from the Administrative Agent or such Lender or such L/C Issuer (or such other recipient) having executed, delivered, become a party to, or performed its obligations or received a payment under, or enforced, received or perfected a security interest under, or engaged in any other transaction pursuant to this Agreement, any Note or any other Loan Document, or sold or assigned an interest in any Loan or Loan Document).
Other Taxes” means all present or future stamp, court, intangible, recording, filing, or documentary taxes or any other similar Taxes arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or, enforcement of,or registration of, from the receipt or perfection of a security interest under or otherwise with respect to, this Agreement or any other Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment pursuant to Section 10.13).
Outstanding Amount” means (a) with respect to Term Loans, Revolving Loans, Incremental Loans and Refinancing Loans, as the context may require, on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such Term Loans, Revolving Loans, Incremental Loans or Refinancing Loans, as applicable, occurring on such date, and (b) with respect to any L/C Obligations on any date, the Dollar Equivalent amount of the aggregate outstanding amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts.
Overnight Bank Funding Rate” means, for any day, the greater of (a) the Federal Funds Rate in the case of any amount denominated in Dollars and (b) an overnight raterate

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comprised of both overnight federal funds and overnight Eurodollar borrowings by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the Administrative Agent or the L/C Issuer, as the case may be, in accordance with banking industry rules on interbank compensation.NYFRB as set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.
Participant” has the meaning specified in Section 10.06(d).
Participant Register” has the meaning specified in Section 10.06(d).
Patent Security Agreement” means the Patent Security Agreement, substantially in the form attached to the Security Agreement dated the Closing Date, or such other form of patent security agreement reasonably acceptable to the Administrative Agent and the Borrower, by certain Loan Parties in favor of the Collateral Trustee, for the benefit of the Secured Parties, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
Participating Member State” means each state so described in any EMU Legislation.
PATRIOT Act” has the meaning specified in Section 5.17.
Payment in Full” means, the time at which no Lender or L/C Issuer shall have (a) any Commitments, any Loan or other Obligations unpaid, unsatisfied or outstanding (other than in respect of contingent obligations, indemnities and expenses related thereto that are not then payable or in existence) and (b) Letters of Credit outstanding that (i) have not been Cash Collateralized in a manner reasonably satisfactory or (ii) have not had other arrangements made with respect to them that are reasonably satisfactory, in each case, to the applicable L/C Issuer.
PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA, or any successor thereto.
Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Section 412 of the Code or Title IV of ERISA and is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years.
Permitted Acquisition” means any acquisition of all or substantially all the assets of, or all of the Equity Interests in, or merger, consolidation or amalgamation with, a Person or division or line of business of a Person, solely to the extent permitted as an Investment under Section 7.02.
Permitted Amendments” means, with respect to any Facility, an extension of the maturity date of any Loan and/or any Commitments in respect of such Facility by the Accepting Lenders and, in connection therewith, (a) any change in the Applicable Rate with respect to the applicable Loans and/or Commitments of the Accepting Lenders and/or the payment of

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additional fees (including rate floor, OID, upfront fees or other fees) to the Accepting Lenders (such change and/or payments to be in the form of cash, Equity Interests or other property as agreed by the Borrower and the Accepting Lenders to the extent not prohibited by this Agreement, excluding Section 2.13), (b) the repayment in full on the maturity date of such Facility of the non-extended Loans thereunder and other amounts owing to each of the Lenders who are not Accepting Lenders, (c) to the extent that such Facility is the Term Loan Facility, any change in the amortization schedule and any prepayment premiums with respect to the applicable Loans of the Accepting Lenders, so long as a weighted average life of the extended Loans is no shorter than that of the Term Loans under such Facility prior to such extension, (d) no repayment of any extended Loans shall be permitted unless such repayment is accompanied by an at least pro rata repayment of all earlier maturing Loans (including previously extended Loans) (or all earlier maturing Loans shall otherwise be or have been terminated and repaid in full) and (e) any other change in terms from the Facility so long as (i) they apply after the non-extended maturity date of such Facility or (ii) the non-Accepting Lenders receive the benefit of any such terms that are more restrictive to the Borrower and its Restricted Subsidiaries (it being understood that the benefit of such more restrictive terms may be provided to the non-Accepting Lenders without their consent) as certified by a Responsible Officer of the Borrower in good faith.
Permitted Asset Swap” means the substantially concurrent purchase and sale, trade-in or exchange of equipment, real property or any other property of a nature or type that is used or useful in a Similar Business or a combination of such equipment, real property or any other property and cash or Cash Equivalents between the Borrower or any of its Restricted Subsidiaries and another Person; provided that the fair market value of the equipment, real property or any other property received is at least as great as the fair market value of the equipment, real property or other property being traded-in or exchanged as determined by the Borrower reasonably and in good faith; provided that any shortfall may be treated as an Investment and shall constitute an Investment for purposes of calculating compliance with Section 7.02.
Permitted Australian Restructuring Transactions” means the restructuring of non-Loan Party Restricted Subsidiaries organized under the laws of Australia, the Netherlands or Gibraltar for tax and organizational efficiency purposes, including the mergers, dissolutions, distributions, contributions, restricted payments, dispositions, intercompany loans, investments, redomiciling and other transactions undertaken to effect such restructuring, in each case, by and among such non-Loan Party Restricted Subsidiaries.
Permitted Real Estate Encumbrances” means the following encumbrances which do not, in any case, individually or in the aggregate, materially detract from the value of any Mine subject thereto or interfere with the ordinary conduct of the business or operations of any Loan Party as presently conducted on, at or with respect to such Mine and as to be conducted following the Closing Date: (a) encumbrances customarily found upon real property used for mining purposes in the applicable jurisdiction in which the applicable real property is located to the extent such encumbrances would be permitted or granted by a prudent operator of mining property similar in use and configuration to such real property (e.g., surface rights agreements, wheelage agreements and reconveyance agreements); (b) rights and easements of (i) owners of undivided interests in any of the real property where the applicable Loan Party or Subsidiary owns less than 100% of the fee interest, (ii) owners of interests in the surface of any real property

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where the applicable Loan Party or Subsidiary does not own or lease such surface interest, (iii) lessees, if any, of coal or other minerals (including oil, gas and coal bed methane) where the applicable Loan Party or Subsidiary does not own such coal or other minerals, and (iv) lessees of other coal seams and other minerals (including oil, gas and coal bed methane) not owned or leased by such Loan Party or Subsidiary; (c) with respect to any real property in which the Borrower or any Restricted Subsidiary holds a leasehold interest, terms, agreements, provisions, conditions, and limitations (other than royalty and other payment obligations which are otherwise permitted hereunder) contained in the leases granting such leasehold interest and the rights of lessors thereunder (and their heirs, executors, administrators, successors, and assigns), subject to any amendments or modifications set forth in any landlord consent delivered in connection with a Mortgage; (d) farm, grazing, hunting, recreational and residential leases with respect to which the Borrower or any Restricted Subsidiary is the lessor encumbering portions of the real properties to the extent such leases would be granted or permitted by, and contain terms and provisions that would be acceptable to, a prudent operator of mining properties similar in use and configuration to such real properties; (e) royalty and other payment obligations to sellers or transferors of fee coal or lease properties to the extent such obligations constitute a lien not yet delinquent; (f) rights of others to subjacent or lateral support and absence of subsidence rights or to the maintenance of barrier pillars or restrictions on mining within certain areas as provided by any mining lease, unless in each case waived by such other person; and (g) rights of repurchase or reversion when mining and reclamation are completed.
Permitted Refinancing Increase” means, with respect to the Refinancing of any Indebtedness, an amount equal to (a) any premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such Refinancing, (b) any unpaid accrued interest on the Indebtedness being Refinanced, and (c) any existing commitments unutilized under the Indebtedness being Refinanced.
Permitted Refinancing Indebtedness” mean any Indebtedness issued in exchange for, or the net proceeds of which are used to, extend, refinance, renew, replace, defease or refund (collectively, to “Refinance”), the Indebtedness being Refinanced (or previous refinancings thereof constituting Permitted Refinancing Indebtedness); provided that (a) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so Refinanced (plus any Permitted Refinancing Increase in respect of such Refinancing), (b) such Permitted Refinancing Indebtedness shall have the same obligors and same guarantees as, and be secured on a pari passu basis with, the Indebtedness so Refinanced (provided that the Permitted Refinancing Indebtedness may be subject to lesser guarantees or be unsecured or the Liens securing the Permitted Refinancing Indebtedness may rank junior to the Liens securing the Indebtedness so Refinanced) and, to the extent applicable, the Borrower shall have satisfied the requirements of Section 3.8 of the Collateral Trust Agreement with respect to such Permitted Refinancing Indebtedness, (c) the maturity date is later than or equal to, and the weighted average life to maturity of such Permitted Refinancing Indebtedness is greater than or equal to, in each case, that of the Indebtedness being Refinanced, (d) if the Indebtedness so Refinanced is subordinated in right of payment to the Obligations, then such Permitted Refinancing Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which it is outstanding, is expressly made subordinate in right of payment to the Obligations at least to the extent that the Indebtedness so Refinanced is subordinated to the Obligations and (e) the terms and conditions

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of any Permitted Refinancing Indebtedness, taken as a whole, are not materially less favorable to the Loan Parties than the terms and conditions of the Indebtedness that is being Refinanced.
Permitted Restructuring Transaction” means the mergers, distributions and other transactions described in Section IV.F.1 and Exhibit IV.F.1 of the Plan of Reorganization undertaken substantially concurrently with, or within the three-month period following, the Closing Date; provided that in connection with any transfers of assets (including Equity Interests) to any Loan Party, such Loan Party shall comply with Section 6.16 with respect to such assets; provided, further, that (i) no such transaction shall result in a change in the ownership of Peabody Investments (Gibraltar) Limited by Gibraltar Holdings, (ii) no such transaction shall result in any material asset becoming an Excluded Asset (other than to the extent such asset is excluded under clause (i)(iii) of the definition of Excluded Asset) and (iii) no such transaction shall involve a transfer of assets (including Equity Interests) or other distribution from a Loan Party to a non-Loan Party or a merger or dissolution of a Loan Party into a non-Loan Party (other than those transactions occurring substantially concurrently with the Closing Date).
Permitted Securitization Programs” means (a) the Existing Securitization Facility and (b) any receivables securitization program pursuant to which the Borrower or any of its Subsidiaries sells receivables and interests in Receivables Assets, which are non-recourse (except for representations, warranties, covenants, repurchase obligations and indemnities, in each case, that are reasonably customary for a seller or servicer of assets transferred in connection with such a facility) to the Borrower and the Restricted Subsidiaries providing for the sale, conveyance or contribution to capital of Receivables Assets to Special Purpose Receivables Subsidiary; provided, that the aggregate principal amount outstanding of any Permitted Securitization Program, together with the maximum principal amount outstanding of any ABL Facility, shall not exceed the greater of $250,000,000 and 3.56.5% of Consolidated Net Tangible Assets.
Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
PIC Intercompany Loan Agreement” means that certain Loan Agreement, dated as of April 11, 2012, among Peabody Investments Corp., as lender, and Peabody Energy Australia Pty Ltd, as borrower, with respect to advances made from time to time thereunder.
PIC Intercompany Note” means that certain Promissory Note, dated as of the Closing Date, evidencing the advances made pursuant to the PIC Intercompany Loan Agreement.
Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established by the Borrower or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, by any ERISA Affiliate.
Plan Documents” has the meaning specified in Section 4.01(l).
Plan of Reorganization” means the Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession, dated January 27, 2017, relating to the Borrower and its debtor Subsidiaries, and filed with the Bankruptcy Court under Docket No. 2229,

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including all exhibits thereto, as the same may be amended, supplemented, modified or waived from time to time in a manner that does not result in a failure of the condition precedent set forth in Section 4.01(l).
Plan Support Agreement” means that certain Plan Support Agreement, dated as of December 22, 2016, among (A) the Debtors (as defined therein), (B) the First Lien Lender Co-Proponents, the Ad Hoc Secured Committee Members and the Ad Hoc Unsecured Noteholders Group (each as defined therein), (C) any Additional Supporting Parties (as defined therein) that subsequently enters into the Plan Support Agreement and (D) each other person that becomes a party in accordance with Section 8(b) thereof, as the same may be amended, supplemented, modified or waived from time to time in a manner that does not result in a failure of the condition precedent set forth in Section 4.01(l).
Platform” has the meaning specified in Section 6.02.
“Pledged Intercompany Indebtedness” has the meaning specified in Section 7.03(f).
“PRB-CO Joint Venture” means PRB-CO JV, LLC, a Delaware limited liability company, formed pursuant to the joint venture agreement between the Borrower and Arch Coal, Inc. to combine their respective Powder River Basin and Colorado assets.
“PRB-CO Joint Venture Transactions” means the actions to be taken by the Borrower and the Subsidiaries as set forth on Schedule 1.01(f) as of the Seventh Amendment Effective Date and the transactions and actions related or ancillary thereto.
Preferred Stock” means, with respect to any Person, any and all Capital Stock which is preferred as to the payment of dividends or distributions, upon liquidation or otherwise, over another class of Capital Stock of such Person.
Prime Rate” means the rate of interest last quoted in the print edition ofby The Wall Street Journal, Money Rates Section as the Prime Rate (currently defined as the base rate on corporate loans posted by at least 75% of the nation’s thirty (30) largest banks), as in effect from time to time. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. The Administrative Agent or any other Lender may make commercial loans or other loans at rates of interest at, above or below the Prime Rate. as the “Prime Rate” in the U.S. 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 Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.
Priority Lien Notes” means each of (a) the senior secured first lien notes due March 31, 2022 and, (b) the senior secured first lien notes due 2025, and (c) the senior secured first lien notes due 2027, in each case, issued from time to time pursuant to the applicable Priority Lien Notes Indenture.

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Priority Lien Notes Indenture” means, collectively, (a) the Indenture, dated as of February 15, 2017, between Peabody Securities Finance Corporation, a Delaware corporation (the “Escrow Issuer”), and the Priority Lien NotesWilmington Trust, National Association, as Trustee (as defined therein), as modified by a Supplemental Indenture dated as of April 3, 2017prior to the date hereof, among the Escrow Issuer, the Borrower, the Guarantors (as defined therein) party thereto and the Priority Lien Notes Trustee, Wilmington Trust, National Association, as Trustee, (as defined therein), as the same may be further amended, restated, supplemented, replaced, refinanced or otherwise modified from time to time in accordance with the Collateral Trust Agreement and (b) the Indenture to be entered into in September 2019 among the Borrower, the Guarantors (as defined therein) party thereto and Regions Bank, as Trustee (as defined therein), as the same may be further amended, restated, supplemented, replaced, refinanced or otherwise modified from time to time in accordance with the Collateral Trust Agreement.
Priority Lien Notes Documents” means the Priority Lien Notes Indenture, the Priority Lien Notes and each other instrument or agreement executed in connection with the Priority Lien Notes and any instrument or agreement executed in connection with any refinancings and replacements thereof to the extent permitted under the Collateral Trust Agreement, as each such material instrument or agreement may be amended, restated, supplemented, replaced or otherwise modified from time to time in accordance with the Collateral Trust Agreement.
Priority Lien Notes Indebtedness” means the Indebtedness of Borrower and the other Loan Parties incurred pursuant to or evidenced by the Priority Lien Notes Documents.
Priority Lien Notes Trustee” means Wilmington Trust, National Association, together with its successors and assigns in such capacity.
Production Payments” means with respect to any Person, all production payment obligations and other similar obligations with respect to coal and other natural resources of such Person that are recorded as a liability or deferred revenue on the financial statements of such Person in accordance with GAAP.
Pro Forma Basis” means, for purposes of calculating the financial covenant set forth in Section 7.11, Consolidated Net Tangible Assets, the Total Leverage Ratio under the definition of “Incremental Debt Cap”, in Section 6.13, Section 7.03(j), Section 7.06(e) and Section 7.06(m), the Fixed Charge Coverage Ratio in Section 7.06(m), the First Lien Leverage Ratio under the definition of “Incremental Debt Cap”, or any other test that is based on satisfying a financial ratio or metric, that with respect to any acquisition or disposition (in each case, that would be included in a Pro Forma Basis calculation pursuant to Section 1.03(c)), such acquisition or disposition shall be deemed to have occurred as of the first day of the most recent four fiscal quarter period preceding the date of such acquisition or disposition for which the Borrower has delivered financial statements pursuant to Section 6.01. In connection with the foregoing, (a) with respect to any such acquisition, income statement items attributable to the Person or property or assets acquired shall be included to the extent relating to any period applicable in such calculations to the extent (i) such items are not otherwise included in such income statement items for the Borrower and its Restricted Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth in Section 1.01, (ii) such items are supported by

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financial statements or other information reasonably satisfactory to the Administrative Agent and (iii) any Indebtedness incurred or assumed by the Borrower or any Subsidiary (including the Person, property or assets acquired) in connection with such acquisition and any Indebtedness of the Person, property or assets acquired which is not retired in connection with such acquisition (A) shall be deemed to have been incurred as of the first day of the most recent four fiscal quarter period preceding the date for such acquisition and (B) if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the most recent four fiscal quarter period preceding the date of such acquisition for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination; and (b) with respect to any such disposition, income statement items attributable to the Person or property or assets being disposed of shall be excluded to the extent relating to any period applicable in such calculations in accordance with the foregoing principles applicable to acquisitions, mutatis mutandis.
Properties” has the meaning specified in Section 5.09(a).
PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
“QFC Credit Support” has the meaning assigned to it in Section 10.26.
Qualified Equity Interests” means all Equity Interests of a Person other than Disqualified Equity Interests.
Receivables Assets” means any receivable (whether constituting an account, chattel, paper, instrument or general intangible) from time to time originated, acquired or otherwise owned by the Borrower or any Subsidiary, including, with respect to any receivable:
(a)    all of a Subsidiary’s and any Loan Party’s interest in any goods (including returned goods) to the extent related to such receivable, and documentation of title evidencing the shipment or storage of any such goods (including any such returned goods),
(b)    all instruments and chattel paper that may evidence such receivable (and to the extent they do not evidence any asset that is not a receivable),
(c)    all other security interests or liens and property subject thereto from time to time purporting to secure payment of such receivable, whether pursuant to the contract related to such receivable or otherwise, together with all UCC financing statements or similar filings related thereto,
(d)    solely to the extent applicable to such receivable, the rights, interests and claims under the contracts and all guarantees, indemnities, insurance and other agreements (including the related contract) or arrangements of whatever character from time to time supporting or securing payment of such receivable or otherwise relating to such receivable whether pursuant to the contract related to such receivable or otherwise,

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(e)    all funds that are received or deemed received by a Loan Party or a Subsidiary in payment of any amounts owed in respect of such receivable (including, without limitation, purchase price, finance charges, fees, interest and all other charges) or are applied to amounts owed in respect of such receivable (including, without limitation, insurance payments and net proceeds of sale or other disposition of repossessed goods or other collateral or property of the related obligor or any other person directly or indirectly liable for the payment of any such receivable and available to be applied thereon),
(f)    the lock-box accounts designated solely as the accounts to receive the proceeds of such receivables and all amounts on deposit therein, and all certificates and instruments, if any, from time to time evidencing such lock-box accounts and amounts on deposit therein,
(g)    all monies due or to become due with respect to any of the foregoing,
(h)    all collections, proceeds and products of any of the foregoing, as defined in the UCC, that are received or are receivable by a Loan Party or a Subsidiary, and
(i)    all books and records to the extent related to any of the foregoing Receivables Assets.
For the avoidance of doubt, Receivables Assets shall exclude any intercompany receivables, including, without limitation, amounts owing under the PIC Loan Agreement and the PIC Intercompany Note.
Refinance” has the meaning specified in the definition of Permitted Refinancing Indebtedness.
Refinancing” means the refinancing of certain of Borrower’s and its Subsidiaries’ existing Indebtedness, substantially on the terms set forth in the Plan of Reorganization.
Refinancing Facility” has the meaning specified in Section 2.16(a).
Refinancing Facility Effective Date” has the meaning specified in Section 2.16(a).
Refinancing Facility Lender” means any Person who provides a Refinancing Facility.
Refinancing Loan” means, with respect to any Refinancing Facility, an advance made by any Refinancing Facility Lender under such Refinancing Facility.
Refinancing Notes” has the meaning specified in Section 7.03(n).
Refinancing Revolving Facility” has the meaning specified in Section 2.16(a).
Refinancing Term Facility” has the meaning specified in Section 2.16(a).
Register” has the meaning specified in Section 10.06(c).
Related Agreements” means, collectively, the Priority Lien Notes Documents, the Rights Offering Documents, the documents evidencing the Existing Securitization Facility,

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the documents governing the Convertible Securities and executed in connection therewith and all other documents executed in connection with the effectiveness of the Plan of Reorganization.
Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, attorneys and advisors of such Person and of such Person’s Affiliates.
Related Party Transaction” has the meaning specified in Section 7.08.
Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.
Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Term Loans, Incremental Revolving Loans or other Incremental Loans, a Borrowing Notice and (b) with respect to an L/C Credit Extension, a Letter of Credit Application.
Required Facility Lenders” means, as of any date of determination, with respect to any Facility, Lenders under such Facility holding more than 50% of the Total Outstandings (and, if such Facility is an Incrementala Revolving Facility, aggregate unused Incremental Revolving Commitments) with respect to such Facility; provided (a) if such Facility is an Incrementala Revolving Facility, the aggregate amount of each Incremental Revolving Lender’s risk participation and funded participation in L/C Obligations shall be deemed “held” by such Incremental Revolving Lender for purposes of this definition and (b) the unused Commitment of, and the portion of such Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded from both the numerator and the denominator for purposes of making a determination of Required Facility Lenders.
Required Lenders” means, as of any date of determination, Lenders holding more than 50% of the sum of the (a) Total Outstandings (with the aggregate amount of each Incremental Revolving Lender’s risk participation and funded participation in L/C Obligations being deemed “held” by such Incremental Revolving Lender for purposes of this definition) and (b) aggregate unused Incremental Revolving Commitments; provided that the unused Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded from both the numerator and the denominator for purposes of making a determination of Required Lenders.
Required Revolving Lenders” means, as of any date of determination, Incremental Revolving Lenders holding more than 50% of the sum of the (a) Total Revolving Credit Outstandings (with the aggregate amount of each Incremental Revolving Lender’s risk participation and funded participation in L/C Obligations being deemed “held” by such Incremental Revolving Lender for purposes of this definition) and (b) aggregate unused Incremental Revolving Commitments; provided that the unused Incremental Revolving Commitments of, and the portion of the Total Revolving Credit Outstandings held or deemed held by, any Defaulting Lender shall be excluded from both the numerator and the denominator for purposes of making a determination of Required Revolving Lenders.

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Requirement of Law” means as to any Person, the Organizational Documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
Reserve Area” means (a) the real property owned in fee by any Loan Party or in which a Loan Party has a leasehold interest that is part of the areas listed on Schedule 1.01(e) as of the Seventh Amendment Effective Date and (b) any real property constituting coal reserves or access to coal reserves owned in fee by any Loan Party or in which a Loan Party has a leasehold interest, acquired after the ClosingSeventh Amendment Effective Date, that is not an active Mine.
Responsible Officer” means the chief executive officer, president or any vice president of the Borrower or any applicable Subsidiary and, in addition, any Person holding a similar position or acting as a director or managing director with respect to any other Foreign Subsidiary of the Borrower or, with respect to financial matters, the chief financial officer, treasurer or assistant treasurer of the Borrower.
Restricted Payment” means (a) any dividend or other distribution (whether in cash, securities or other property) by the Borrower or any Restricted Subsidiary with respect to its Capital Stock, or any payment (whether in cash, securities or other property) by the Borrower or any Restricted Subsidiary, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any of its Capital Stock, or on account of any return of capital to its stockholders, partners or members (or the equivalent Person thereof) and (b) any payment or prepayment of principal of, premium, if any, or interest on, or redemption, purchase, retirement, defeasance (including in-substance or legal defeasance), sinking fund or similar payment with respect to, any unsecured Indebtedness, Subordinated Indebtedness or Junior Lien Indebtedness.
Restricted Subsidiary” means any Subsidiary that is not an Unrestricted Subsidiary.
Revaluation Date” means, with respect to any Letter of Credit denominated in an Alternative Currency, each of the following: (a) each date of issuance of such Letter of Credit, (b) the first Business Day of each month and (c) during the existence of an Event of Default, such additional dates as the Administrative Agent or the applicable L/C Issuer shall determine or the Required Revolving Lenders shall require.
Rights Offering Documents” means the documents evidencing the rights offering of Equity Interests in the Borrower to eligible holders of the Borrower’s pre-petition unsecured and second lien creditors under the Plan of Reorganization in an aggregate amount equal to at least $750,000,000.
“Revolving Borrowing” means a borrowing consisting of simultaneous Revolving Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Revolving Lenders pursuant to Section 2.01(b).
“Revolving Commitment” means, as to each Revolving Lender, its obligation to (a) make Revolving Loans or issue Letters of Credit to the Borrower pursuant to Section 2.01(b)

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and (b) purchase participations in L/C Obligations, in an aggregate principal amount at any one time outstanding under such clauses (a) and (b) not to exceed the amount (x) as of the Seventh Amendment Effective Date, set forth opposite such Lender’s name on Schedule 2.01 under the caption “Revolving Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, or (y) in the case of any Incremental Revolving Facility, in the applicable Incremental Amendment, in each case, as such amount may be adjusted from time to time in accordance with this Agreement. As of the Seventh Amendment Effective Date, the aggregate amount of (i) the Revolving Commitments under the 2017 Incremental Revolving Facility is $25,000,000 and (ii) the Revolving Commitments under the 2019 Refinancing Revolving Facility is $540,000,000.
“Revolving Facility” means, at any time, the aggregate Revolving Lenders’ Revolving Commitments at such time.
“Revolving Facility Maturity Date” means (i) with respect to the 2017 Incremental Revolving Facility, November 17, 2020, and (ii) with respect to the 2019 Refinancing Revolving Facility, the earlier of (x) September 17, 2023, and (y) if on any date (the “Springing Maturity Date”), the maturity date for any then-outstanding Priority Lien Notes (or any Indebtedness that amends, restates, amends and restates, modifies, supplements, refinances or replaces the Priority Lien Notes in whole or in part) shall fall within six (6) months of the Springing Maturity Date, then, the Revolving Facility Maturity Date with respect to the 2019 Refinancing Revolving Facility shall be the Springing Maturity Date; provided, however, that, in each case of clauses (x) and (y), if such date is not a Business Day, the Revolving Facility Maturity Date shall be the preceding Business Day.
“Revolving Lender” means any Person who provides any portion of the Revolving Commitments.
“Revolving Loan” means an advance made by a Revolving Lender pursuant to Section 2.01(b) with respect to its Revolving Commitment.
S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and any successor thereto.
Same Day Funds” means (a) with respect to disbursements and payments in Dollars, immediately available funds and (b) with respect to disbursements and payments in an Alternative Currency, same day funds as may be determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, to be customary in the place of disbursement or payment for the settlement of international banking transactions in the relevant Alternative Currency.
Sanctions” has the meaning specified in Section 5.17.
Sanctions Laws” has the meaning specified in Section 5.17.
SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

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Second Amendment” means that certain Amendment No. 2 to Credit Agreement, dated as of November 17, 2017, by and among the Borrower, the other Reaffirming Parties (as defined therein), the Incremental Revolving Lenders party thereto and the Administrative AgentGoldman Sachs Bank USA as the administrative agent.
Second Amendment Effective Date” means November 17, 2017.
“Secured Cash Management Agreement” means any Cash Management Agreement that is entered into by and between the Borrower or any Restricted Subsidiary and any Cash Management Bank.
Secured Cash Management Obligations” means all advances to, and debts, liabilities and obligations of the Borrower or any Restricted Subsidiary arising under any SpecifiedSecured Cash Management Agreement.
Secured Hedging Agreement” means any Hedging Agreement between the Borrower or a Restricted Subsidiary, on the one hand, and any Lender, an Agent, an Arranger or an Affiliate of any of the foregoing (or with any Person that was a Lender, an Agent, an Arranger or an Affiliate of the foregoing when such Hedging Agreement was entered into) (any such counterparty, a “Hedge Bank”).
Secured Hedging Obligations” means all debts, liabilities and obligations of the Borrower or any Restricted Subsidiary in respect of any Secured Hedging Agreement.
Secured Obligations” means the Obligations, the Secured Hedging Obligations and the Secured Cash Management Obligations. Notwithstanding anything to the contrary herein, the “Secured Obligations” shall not include any Excluded Hedging Obligations.
Secured Parties” means, collectively, the Agents, the Collateral Trustee, the Arrangers, the Lenders, the L/C Issuers, any Cash Management Bank and, with respect to any Secured Hedging Agreement, any Hedge Bank.
Security Agreement” means that certain Pledge and Security Agreement, dated as of the Closing Date, substantially in the form of Exhibit G or such other form reasonably acceptable to the Administrative Agent, the Collateral Trustee and the Borrower, among the Borrower, the Restricted Subsidiaries from time to time party thereto and the Collateral Trustee, for the benefit of the Secured Parties, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
Security Documents” means, collectively, the Security Agreement, the Gibraltar Pledge Agreement, the IP Security Agreements, the Mortgages, the Collateral Trust Agreement, each of the pledge agreements and supplements thereto, security agreements and supplements thereto, and other similar agreements delivered to Administrative Agent and Lenders pursuant to Section 6.16, and any other documents, agreements or instruments that grant or purport to grant a Lien on any assets of the Borrower or any other Loan Party in favor of the Collateral Trustee to secure the Secured Obligations.

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“Seventh Amendment” means that certain Amendment No. 7 to Credit Agreement, dated as of September 17, 2019, by and among the Borrower, the other Reaffirming Parties (as defined therein), the Lenders party thereto and the Administrative Agent.
“Seventh Amendment Effective Date” means September 17, 2019.
Similar Business” means any of the following, whether domestic or foreign: the mining, production, marketing, sale, trading and transportation (including, without limitation, any business related to terminals) of natural resources including coal, ancillary natural resources and mineral products, exploration of natural resources, any acquired business activity so long as a material portion of such acquired business was otherwise a Similar Business, and any business that is ancillary or complementary to the foregoing.
“Sixth Amendment” means that certain Amendment No. 6 to Credit Agreement, dated as of September 17, 2019 by and among the Borrower, the other Reaffirming Parties (as defined therein), the Lenders party thereto and Goldman Sachs Bank USA, as the administrative agent.
“Sixth Amendment Effective Date” means September 17, 2019.
Solvent” means, with respect to any Person, that as of the date of determination, both (i) (a) the sum of such Person’s debt (including contingent liabilities) does not exceed the present fair saleable value of such Person’s present assets; (b) such Person’s capital is not unreasonably small in relation to its business as contemplated on the ClosingSeventh Amendment Effective Date and reflected in the projections delivered pursuant to Section 4.01(a)(xiiix) or with respect to any transaction contemplated to be undertaken after the ClosingSeventh Amendment Effective Date; and (c) such Person has not incurred and does not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts as they become due (whether at maturity or otherwise); and (ii) such Person is “solvent” within the meaning given that term and similar terms under the Bankruptcy Code and other applicable laws relating to fraudulent transfers and conveyances. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standards No. 5).
Special Purpose Receivables Subsidiary” means P&L Receivables Company LLC and any other direct or indirect Subsidiary of the Borrower established in connection with a Permitted Securitization Program for the acquisition of Receivables Assets or interests therein that is organized in a manner intended to reduce the likelihood that it would be substantively consolidated with the Borrower or any of the Restricted Subsidiaries in the event the Borrower or any such Restricted Subsidiary becomes subject to a proceeding under any Debtor Relief Law.
Specified Cash Management Agreement” means any Cash Management Agreement that is entered into by and between the Borrower or any Restricted Subsidiary and any Cash Management Bank and which has been designated at the election of the Borrower as a

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“Specified Cash Management Agreement” by written notice given by the Borrower and the Cash Management Bank to the Administrative Agent.
Specified Representations” means, with respect to any Permitted Acquisition, the representations and warranties contained in Sections 5.01(a)(i), 5.01(b)(ii), 5.02(a), 5.02(b)(i), 5.02(b)(iii), 5.04, 5.14, 5.17, 5.19 and 5.21; provided, that for purposes of this definition, (a) the defined term “Loan Parties” as used in such representations and warranties shall mean the Borrower and each Guarantor in existence immediately prior to the consummation of the Permitted Acquisition, (b) clause (a) of the defined term “Material Adverse Effect” as used in Section 5.02 shall relate to the Borrower and its Restricted Subsidiaries immediately prior to the ClosingSeventh Amendment Effective Date and (c) the representation and warranty contained in Section 5.14(b) shall apply only to the Borrower and the Loan Parties (as such term is used in clause (a) of this proviso).
Specified Subsidiary” means each of Gibraltar Holdings, Peabody International Investments, Inc., Peabody International Holdings, LLC, each other Subsidiary, whether now owned or hereafter formed or acquired, that directly holds Equity Interests in Gibraltar Holdings at any time, and any successor to any of the foregoing; provided that in no event shall any Guarantor be designated as a Specific Subsidiary so long as (i) any Equity Interests owned by such Guarantor constitute Collateral and (ii) the Equity Interests of such Guarantor constitutes Collateral.
Spot Rate” for a currency means the spot rate determined by the Administrative Agent or the L/C Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that the Administrative Agent or the applicable L/C Issuer may obtain such spot rate from another financial institution designated by the Administrative Agent if such Person does not have as of the date of determination a spot buying rate for any such currency; and provided further that the applicable L/C Issuer may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in an Alternative Currency.
“Springing Maturity Date” has the meaning specified in the definition of “Revolving Facility Maturity Date”.
Sterling” and “£” means the lawful currency of the United Kingdom.
Subordinated Indebtedness” means any Indebtedness of the Borrower and its Restricted Subsidiaries that is contractually subordinated to the Indebtedness under the Loan Documents.
Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned directly, or indirectly through one or more intermediaries, or both,

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by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.
“Supported QFC” has the meaning assigned to it in Section 10.26.
Surety Bonds” means surety bonds obtained by the Borrower or any Restricted Subsidiary consistent with market practice and the indemnification or reimbursement obligations of the Borrower or such Restricted Subsidiary in connection therewith.
Syndication Agent” has the meaning specified in the preamble hereto.
“Syndication Agents” means, as of the Seventh Amendment Effective Date, JPMorgan Chase Bank, N.A. and Goldman Sachs Bank USA.
Tangible Assets” means at any date, with respect to any Person, (a) the sum of all amounts that would, in accordance with GAAP, be set forth opposite the caption “total assets” (or any like caption) on a consolidated balance sheet of such Person at such date minus (b) the sum of all amounts that would, in accordance with GAAP, be set forth opposite the captions “goodwill” or other intangible categories (or any like caption) on a consolidated balance sheet of such Person on such date.
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 Lender” means any Person who provides theholding Term Loan FacilityLoans.
Term Loan” means an advance made by any Lender under the Term Loan Facilitypursuant to Section 2.01(a) or any applicable Incremental Amendment or other amendment pursuant to the terms hereof.
Term Loan Borrowing” means a borrowing consisting of simultaneous Term Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Term Loan Lenders pursuant to Section 2.01(a) or otherwise pursuant to the terms of this Agreement.
Term Loan Commitment” means, as to each Lender, its obligation to make Term Loans to the Borrower pursuant to Section 2.01 in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 under the caption “Term Loan Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Lender becomes a party hereto or as described in the First Amendment or Fourth Amendment, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate amount of Term Loan Commitments as of the Closing Date was $950,000,000. The aggregate amount of the 2017 Refinancing Term Commitments (as defined in the First Amendment) on the First Amendment Effective Date was $647,625,000. The aggregate amount of the 2018 Refinancing Term Commitments (as defined in the Fourth Amendment) on the Fourth Amendment Effective Date (after giving effect to the

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$46,005,937.47 prepayment made pursuant to Section 9(b) of the Fourth Amendment) is $400,000,000.
Term Loan Facility” means, at any time, the aggregate principal amount of the Term Loans of all Lenders outstanding at such time.
Third Amendment” means that certain Amendment No. 3 to Credit Agreement, dated as of December 18, 2017, by and among the Borrower, the other Reaffirming Parties (as defined therein), the Incremental Revolving Lenders party thereto and the Administrative AgentGoldman Sachs Bank USA as the administrative agent.
Third Amendment Effective Date” means the Amendment No. 3 Effective Date (as defined in the Third Amendment).
Threshold Amount” means $75,000,000.
Ticking Fee” has the meaning assigned in Section 2.09(c).
Total Leverage Ratio” means, as of any date of determination, the ratio of (i) Consolidated Net Total Debt as of the date of the financial statements most recently delivered by the Borrower pursuant to Section 6.01(a) or (b), as applicable, to (ii) Consolidated EBITDA for the period of the four consecutive fiscal quarters ending as of the date of such financial statements.
Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C Obligations.
Total Revolving Credit Outstandings” means the aggregate Outstanding Amount of all Incremental Revolving Loans and L/C Obligations.
Trademark Security Agreement” means the Trademark Security Agreement, substantially in the form attached to the Security Agreement dated the Closing Date, or such other form of trademark security agreement reasonably acceptable to the Administrative Agent, by certain Loan Parties in favor of the Collateral Trustee, for the benefit of the Secured Parties, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
Transactions” means, collectively, (a) the Exit, (b) the Refinancing, (c) the incurrence of the Loans under the Loan Documents, (d) the transactions contemplated by the Rights Offering Documents, (e) the issuance of the Convertible Securities and the assumption by the Borrower of the obligations under the Priority Lien Notes, (f) the incurrence of any Permitted Securitization Program, (g) the availability of the Minimum Cash Balance and (h) the payment of the fees and expenses incurred in connection with any of the foregoing clauses (a)-(g) hereof.
Transaction Costs” has the meaning specified in the preliminary statements to this Agreement.

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Type” means, with respect to a Loan, its character as a Base Rate Loan or a Eurocurrency Rate Loan.
UCC” means the Uniform Commercial Code as in effect in the applicable state of jurisdiction.
UCP” means the Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 600, as the same may be amended from time to time.
Unfunded Pension Liability” means the excess of a Pension Plan’s accrued benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the actuarial assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.
United States” and “US” mean the United States of America.
Unreimbursed Amount” means the amount of any unreimbursed drawing (expressed in Dollars or in the amount of the Dollar Equivalent thereof in the case of a Letter of Credit denominated in an Alternative Currency) on any Letter of Credit or, without duplication, the amount of any L/C Borrowing that has been deemed to be incurred in respect thereof and has not been repaid by the Borrower.
Unrestricted Cash” means the aggregate amount of cash and Cash Equivalents held in accounts on the consolidated balance sheet of Borrower and its Restricted Subsidiaries to the extent that the use of such cash for application to payment of the Obligations or other Indebtedness is not prohibited by law or any contract or other agreement and such cash is and Cash Equivalents are free and clear of all Liens (other than Liens in favor of the Collateral Trustee) and Liens permitted pursuant to Section 7.01(p)(i) hereof.
Unrestricted Subsidiary” means (a) any Subsidiary of the Borrower that becomes an Unrestricted Subsidiary in accordance with Section 6.13, (b) any Special Purpose Receivables Subsidiary; provided that any Special Purpose Receivables Subsidiary shall, upon termination of such Permitted Securitization Program (other than as a result of an event of default thereunder unless and until the obligations thereunder are repaid in full), cease to be an Unrestricted Subsidiary, or (c) anyas of the Seventh Amendment Effective Date, any Subsidiary listed on Schedule 1.01(b); provided that in no event shall any of Peabody Investments Corp., Peabody IC Funding Corp., Gibraltar Holdings, Peabody Investments (Gibraltar) Limited, Peabody Global Funding, LLC, Peabody International Investments, Inc. (and any successor thereto), Peabody International Holdings, LLC, and any other Subsidiary, whether now owned or hereafter formed or acquired, that directly holds Equity Interests in Gibraltar Holdings at any time be or be designated as an Unrestricted Subsidiary.
U.S. Government Obligations” means obligations issued or directly and fully guaranteed or insured by the United States of America or by any agency or instrumentality thereof,; provided that the full faith and credit of the United States of America is pledged in support thereof.

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“U.S. Special Resolution Regimes” has the meaning assigned to it in Section 10.26.
Voting Stock” means, with respect to any Person, such Person’s Equity Interest having the right to vote for the election of directors of such Person under ordinary circumstances.
Weighted Average Yield means with respect to any Loan, on any date of determination, the weighted average yield to maturity, in each case, based on the interest rate applicable to such Loan on such date and giving effect to all upfront or similar fees or original issue discount payable with respect to such Loan.
Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
1.02    Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a)    The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organizational Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “herein,” “hereof”, “hereto” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) all references to “wholly-owned” when referring to a Subsidiary of the Borrower shall mean a Subsidiary of which all of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned directly or indirectly by the Borrower or another wholly-owned Subsidiary of the Borrower, (vi) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vii) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

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(b)    In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”
(c)    Section headings herein and in the other Loan Documents are included for convenience of reference only, shall not constitute a part hereof, shall not be given any substantive effect and shall not affect the interpretation of this Agreement or any other Loan Document.
1.03    Accounting Terms.
(a)    Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein.
(b)    Changes in GAAP. If at any time any Accounting Change would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such Accounting Change as if such Accounting Change has not been made (subject to the approval of the Required Lenders); provided that, until so amended, all financial covenants, standards and terms in this Agreement shall continue to be calculated or construed as if such Accounting Change had not occurred. Notwithstanding any other provision contained herein, the definitions set forth in this Agreement and any financial calculations required by the Loan Documents shall be computed to exclude all liabilities related to operating leases, as defined by Financial Accounting Standards Board Accounting Standards Codification 842 (or any successor provision), are excluded from the definition of Indebtedness and payments related to operating leases are not included in interest expenses in part or in whole.
(c)    Pro Forma Basis Calculation. Notwithstanding anything herein to the contrary, the parties hereto acknowledge and agree that all calculations of (i) the Total Leverage Ratio and the First Lien Leverage Ratio for purposes of determining compliance with the Incremental Debt Cap, Section 6.13, Section 7.03(j), Section 7.06(e), Section 7.06(m) and Section 7.11, (ii) Consolidated Net Tangible Assets, (iii) the Fixed Charge Coverage Ratio for purposes of determining compliance with Section 7.06(m)[reserved], or (iv) any other test that is based on satisfying a financial ratio or metric, shall be made on a Pro Forma Basis. (A) with respect to any acquisition by the Borrower or its Restricted Subsidiaries of any Person, property or assets, if the Consolidated EBITDA for the acquired Person or business for the most recent four fiscal quarter period for which financial statements are available is equal to or greater than 5% of the Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for such period and (B) with respect to any disposition by the Borrower or its Restricted Subsidiaries of any Person, property or assets, if the Consolidated EBITDA for the Person or business being disposed of for the most recent four fiscal quarter period for which financial statements are available was equal

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to or exceeded 5% of the Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for such period. With respect to the above Pro Forma Basis calculations, in the event that the relevant entity or property, which is being acquired or disposed, reports its financial results on a semi-annual basis, the Administrative Agent and the Borrower may utilize the two most recent semi-annual financial results for purposes of making such calculation and such above determination in a manner similar to the above that is mutually agreeable.
1.04    Exchange Rates; Currency Equivalents.
(a)    The Administrative Agent or the applicable L/C Issuer, as applicable, shall determine the Spot Rates as of each Revaluation Date to be used for calculating Dollar Equivalent amounts of L/C Credit Extensions and Outstanding Amounts of L/C Obligations denominated in Alternative Currencies. Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur. Except for purposes of financial statements delivered by Loan Parties hereunder or calculating financial covenants hereunder or except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent amount as so determined by the Administrative Agent or the applicable L/C Issuer, as applicable.
(b)    Wherever in this Agreement in connection with the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Letter of Credit is denominated in an Alternative Currency, such amount shall be the relevant Alternative Currency Equivalent of such Dollar amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as determined by the Administrative Agent or the applicable L/C Issuer, as the case may be.
1.05    Additional Alternative Currencies.
(a)    The Borrower may from time to time request that Letters of Credit be issued in a currency other than those specifically listed in the definition of “Alternative Currency”; provided that such requested currency is a lawful currency (other than Dollars) that is readily available and freely transferable and convertible into Dollars. In the case of any such request with respect to the issuance of Letters of Credit, such request shall be subject to the approval of the Administrative Agent and the applicable L/C Issuer.
(b)    Any such request shall be made to the Administrative Agent not later than 11:00 a.m., ten (10) Business Days prior to the date of the desired Credit Extension (or such other time or date as may be agreed by the Administrative Agent and the L/C Issuer, in their sole discretion). The Administrative Agent shall promptly notify the applicable L/C Issuer thereof. Each L/C Issuer shall notify the Administrative Agent, not later than 11:00 a.m., eight (8) Business Days after receipt of such request whether it consents, in its sole discretion, to the issuance of Letters of Credit in such requested currency.
(c)    Any failure by an L/C Issuer to respond to such request within the time period specified in the preceding sentence shall be deemed to be a refusal by such L/C Issuer to permit Letters of Credit to be issued in such requested currency. If the Administrative Agent and the

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applicable L/C Issuer consent to the issuance of Letters of Credit in such requested currency, the Administrative Agent shall so notify the Borrower and such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any Letter of Credit issuances by such L/C Issuer. If the Administrative Agent shall fail to obtain consent to any request for an additional currency under this Section 1.05, the Administrative Agent shall promptly so notify the Borrower.
1.06    Change of Currency.
(a)    Each obligation of the Borrower to make a payment denominated in the national currency unit of any member state of the European Union that adopts the Euro as its lawful currency after the date hereof shall be redenominated into Euro at the time of such adoption (in accordance with the EMU Legislation). If, in relation to the currency of any such member state, the basis of accrual of interest expressed in this Agreement in respect of that currency shall be inconsistent with any convention or practice in the London interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such convention or practice with effect from the date on which such member state adopts the Euro as its lawful currency.
(b)    Each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect the adoption of the Euro by any member state of the European Union and any relevant market conventions or practices relating to the Euro.
(c)    Each provision of this Agreement also shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect a change in currency of any other country and any relevant market conventions or practices relating to the change in currency.
1.07    Times of Day. Unless otherwise specified, all references herein to times of day shall be references to New York City time (daylight or standard, as applicable).
1.08    Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
1.09    Negative Covenant Compliance. For purposes of determining whether the Borrower and its Restricted Subsidiaries comply with any exception to the negative covenants contained in Section 7.01, Section 7.02 and 7.03 where compliance with any such exception is based on a financial ratio or metric being satisfied, it is understood that (a) compliance shall be measured at the time when the relevant event is undertaken, as such financial ratios and metrics are intended to be “incurrence” tests and not “maintenance” tests

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and (b) correspondingly, any such ratio and metric shall only prohibit the Borrower and its Restricted Subsidiaries from creating, incurring, assuming, suffering to exist or making, as the case may be, any new Liens, Indebtedness or Investments, but shall not result in any previously permitted Liens, Indebtedness or Investments ceasing to be permitted hereunder.
1.10    Divisions1.11    . For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized and acquired on the first date of its existence by the holders of its Equity Interests at such time.
ARTICLE II.
THE COMMITMENTS AND BORROWINGS
2.01    The Loans.
(a)    (a) Term Loans. On the Closing Date, each Lender having a Term Loan Commitment as of the Closing Date made Existing Term Loans (as defined in the First Amendment) to the Borrower in the original principal amount of $950,000,000. On the First Amendment Effective Date, each Lender having a Term Loan Commitment as of the First Amendment Effective Date made (or was deemed to have made) Existing Term Loans (as defined in the Fourth Amendment) to the Borrower in the original principal amount of $647,625,000. Subject to the terms and conditions set forth in the Fourth Amendment, on the Fourth Amendment Effective Date, each 2018 Refinancing Term Lender (as defined in the Fourth Amendment) severally agrees to make (or will bemade (or was deemed to have made) a loan (a “Term Loan”) to the Borrower in Dollars, on the Fourth Amendment Effective Date in an aggregate principal amount not to exceed such Lender’s Applicable Percentage of the Term Loan Facility; provided, however, that after giving effect to any such Term Loan Borrowing, (i) the Total Outstandings of Term Loans shalldid not exceed the Term Loan Facility and (ii) the aggregate Outstanding Amount of the Term Loans of any Lender shalldid not exceed such Lender’s Term Loan Commitment. Each Term Loan Borrowing shall consist of Term Loans made simultaneously by the Term Lenders in accordance with their respective Applicable Percentage of the Term Loan Facility. Amounts borrowed under this Section 2.01 and repaid or prepaid may not be reborrowed. Term Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein. Term Loan Commitments in effect on the Fourth Amendment Effective Date and not drawn on the Fourth Amendment Effective Date shall expireexpired immediately after such date.
(b)    Incremental Revolving Borrowings. Subject to the terms and conditions set forth herein, each Incremental Revolving Lender severally agrees to make Incremental Revolving Loans to the Borrower in Dollars from time to time, on any Business Day during the Availability Period for the applicable Incremental Revolving Facility, in an aggregate principal amount not to exceed at any time outstanding the amount of such Lender’s Incremental Revolving Commitment; provided, however, that after giving effect to any Incremental Revolving

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Borrowing, (i) the Total Revolving Credit Outstandings shall not exceed the aggregate Incremental Revolving Commitments and (ii) the aggregate Outstanding Amount of the Incremental Revolving Loans of any Lender, plus such Incremental Revolving Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations shall not exceed such Incremental Revolving Lender’s Incremental Revolving Commitment. Within the limits of each Incremental Revolving Lender’s Incremental Revolving Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.01(b), prepay under Section 2.05, and reborrow under this Section 2.01(b). Incremental Revolving Loans may be Base Rate Loans or Eurocurrency Rate Loans. Each Incremental Revolving Lender may, at its option, make any Incremental Revolving Loan by causing any domestic or foreign branch or Affiliate of such Incremental Revolving Lender to make such Incremental Revolving Loan; provided that any exercise of such option shall not affect in any manner the obligation of the Borrower to repay such Incremental Revolving Loan in accordance with the terms of this Agreement.
2.02    Borrowings, Conversions and Continuations of the Loans.
(a)    Each Term Loan Borrowing, each Incremental Revolving Borrowing, each conversion of Term Loans or Incremental Revolving Loans from one Type to the other, and each continuation of Eurocurrency Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice must be received by the Administrative Agent not later than 12:00 p11:00 a.m., New York City time (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurocurrency Rate Loans and (ii) on the requested date of any Borrowing of Base Rate Loans; provided, however, that if the Borrower wishes to request Eurocurrency Rate Loans having an Interest Period other than one, two, three, or six months or, to the extent available to all Lenders making such Eurocurrency Rate Loans, twelve months or such shorter period in duration as provided in the definition of “Interest Period”, the applicable notice must be received by the Administrative Agent not later than 12:00 p11:00 a.m. New York City time four Business Days prior to the requested date of such Borrowing, conversion or continuation of Eurocurrency Rate Loans. Not later than 12:00 p.m. New York City time three Business Days before the requested date of such Borrowing, conversion or continuation of Eurocurrency Rate Loans, the Administrative Agent shall notify the Borrower (which notice may be by telephone) whether or not the applicable requested Interest Period referenced in the above proviso has been consented to by all such Lenders. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Borrowing Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or continuation of Eurocurrency Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as provided in Section 2.03(c), each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Borrowing Notice (whether telephonic or written) shall specify (i) whether the Borrower is requesting a Term Loan Borrowing, an Incrementala Revolving Borrowing, a conversion of Term Loans or Incremental Revolving Loans from one Type to the other, or a continuation of Eurocurrency Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing

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Term Loans or Incremental Revolving Loans are to be converted and (v) if applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type of Loan in a Borrowing Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation of Eurocurrency Rate Loans, then the applicable Term Loans or Incremental Revolving Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurocurrency Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any such Borrowing Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.
(b)    Following receipt of a Borrowing Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage under the applicable Facility of the applicable Term Loans or Incremental Revolving Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans as described in the preceding subsection. Each Lender shall make the amount of its Loan available to the Administrative Agent in Same Day Funds at the Administrative Agent’s Office not later than 2:00 p.m.12:00 noon, New York City time on the Business Day specified in the applicable Borrowing Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Borrowing, Section 4.01), the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of Administrative Agent with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower; provided, however, that if, on the date a Borrowing Notice with respect to an Incrementala Revolving Borrowing is given by the Borrower there are L/C Advances outstanding, then the proceeds of such an Incrementala Revolving Borrowing, first, shall be applied to the payment in full of any Unreimbursed Amounts in respect thereof, and second, shall be made available to the Borrower as provided above.
(c)    Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurocurrency Rate Loan. During the existence of an Event of Default, no Loans may be requested as, converted to or continued as Eurocurrency Rate Loans if the Required Lenders or the Administrative Agent so notify the Borrower.
(d)    As soon as practicable after 10:00 a.m. (New York City time) on each Interest Rate Determination Date, Administrative Agent shall determine (which determination shall, absent manifest error, be final, conclusive and binding upon all parties) the interest rate that shall apply to the Eurocurrency Rate Loans for which an interest rate is then being determined for the applicable Interest Period and shall promptly give notice thereof (in writing or by telephone confirmed in writing) to the Borrower and each Lender. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in the Administrative Agent’s prime rate used in determining the Base Rate promptly following the public announcement of such change.

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(e)    After giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there shall not be more than fifteen (15) Interest Periods in effect hereunder.
2.03    Letters of Credit.
(a)    The Letter of Credit Commitment.
(i)    Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Incremental Revolving Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the SecondSeventh Amendment Effective Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in one or more Alternative Currencies for the account of the Borrower or any Restricted Subsidiary, and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drawings under the Letters of Credit; and (B) the Incremental Revolving Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or any Restricted Subsidiary and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Credit Outstandings shall not exceed the aggregate Incremental Revolving Commitments and (y) the aggregate Outstanding Amount of the Incremental Revolving Loans of any Lender, plus such Incremental Revolving Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations shall not exceed such Incremental Revolving Lender’s Incremental Revolving Commitment. Each request by the Borrower or any Restricted Subsidiary for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. Notwithstanding anything herein to the contrary, (A) the Administrative Agent and Goldman Sachs Bank USA shall not be required to issue commercial Letters of Credit and (B) Credit Suisse AG and Deutsche Bank AG New York Branch shall not be required to issue commercial Letters of Credit or Bank Guarantees. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto and deemed L/C Obligations and shall be governed and subject to the terms and conditions hereof. At the election of the Borrower and the applicable L/C Issuer, and subject to the approval (not to be unreasonably withheld or delayed) of the Administrative Agent, any letters of credit issued by an L/C Issuer under the Existing Securitization Facility may be deemed to be a Letter of Credit for all purposes under this Agreement (and, for the avoidance of doubt, shall not be treated as outstanding under the Existing Securitization Facility upon such election and approval).
(ii)    No L/C Issuer shall issue any Letter of Credit if:
(A)    subject to Section 2.03(b)(iii) or an agreement by the Borrower to Cash Collateralize such Letter of Credit in the same manner as set forth in 2.03(g), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of

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issuance or last extension, unless the Required Revolving Lenders and the applicable L/C Issuer have approved such expiry date; provided that a Bank Guarantee may have an expiry date that occurs more than twelve months after the date of issuance or last extension (or may have no expiry date) if approved solely by the applicable L/C Issuer (but in any event subject to clause (B) below);
(B)    the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date (or if the requested Letter of Credit does not have an expiry date), unless (x) Cash Collateralized in the same manner as set forth in 2.03(g), or (y) all the Incremental Revolving Lenders and the applicable L/C Issuer have approved such expiry date; or
(C)    such Letter of Credit is to be denominated in a currency other than Dollars or an Alternative Currency.
(iii)    No L/C Issuer shall be under any obligation to issue any Letter of Credit if:
(A)    any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the SecondSeventh Amendment Effective Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the SecondSeventh Amendment Effective Date and which such L/C Issuer in good faith deems material to it;
(B)    the issuance of such Letter of Credit would violate one or more policies of such L/C Issuer;
(C)    such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder or any provisions for automatic extension of its expiry date;
(D)    a default of any Lender’s obligations to fund under Section 2.03(c) exists or any Lender is at such time a Defaulting Lender hereunder, unless the obligations of such Defaulting Lender have been fully reallocated to the non-Defaulting Lenders pursuant to Section 2.18(c) or such L/C Issuer has entered into arrangements satisfactory to it (such as through the posting of Cash Collateral) with the Borrower or such Lender to eliminate such L/C Issuer’s risk with respect to such Lender; or
(E)    after giving effect to such issuance, the aggregate face amount of Letters of Credit issued by such L/C Issuer would exceed its L/C Issuance Limit;

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(iv)    The applicable L/C Issuer and the Borrower shall not amend any Letter of Credit if such L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v)    No L/C Issuer shall be under any obligation to amend any Letter of Credit if the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi)    Each L/C Issuer shall act on behalf of the Incremental Revolving Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and each L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C Issuers with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuers.
(b)    Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.
(i)    Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to an L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Borrower. Such Letter of Credit Application must be received by such L/C Issuer and the Administrative Agent not later than 11:00 a.m., New York City time, at least two Business Days (or such later date and time as the Administrative Agent and such L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the applicable L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount and currency thereof; (C) the expiry date thereof (if applicable, in the case of Bank Guarantees); (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as such L/C Issuer may reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the applicable L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as such L/C Issuer may reasonably require. Additionally, the Borrower shall furnish to the applicable L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as such L/C Issuer or the Administrative Agent may reasonably require.
(ii)    Promptly after receipt of any Letter of Credit Application, the applicable L/C Issuer will confirm with the Administrative Agent (by telephone or in

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writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, such L/C Issuer will provide the Administrative Agent with a copy thereof. Unless such L/C Issuer has received written notice from any Incremental Revolving Lender, the Administrative Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article IV shall not then be satisfied, then, subject to the terms and conditions hereof, such L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower or any Restricted Subsidiary or enter into the applicable amendment, as the case may be, in each case in accordance with such L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Incremental Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from such L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Incremental Revolving Lender’s Applicable Percentage times the amount of such Letter of Credit. The Administrative Agent shall promptly notify each Incremental Revolving Lender of the amount of each Letter of Credit issuance and each amendment with respect to the amount of any Letter of Credit, provided that a failure to provide such notice shall not affect the obligations of each Incremental Revolving Lender to purchase participations in each Letter of Credit as provided in this Agreement. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary, the Borrower shall be obligated to reimburse the applicable Issuing Bank hereunder for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.
(iii)    If the Borrower so requests in any applicable Letter of Credit Application, an L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the applicable L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the applicable L/C Issuer, the Borrower shall not be required to make a specific request to the applicable L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Incremental Revolving Lenders shall be deemed to have authorized (but may not require) the applicable L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that the applicable L/C Issuer shall have no obligation to permit any such extension if (A) such L/C Issuer has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a)), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is five Business Daysfifteen (15) days before the Non-Extension Notice Date from the Administrative Agent or the Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, and in each such case directing the applicable L/C Issuer not to permit such extension.

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(iv)    If the Borrower so requests in any applicable Letter of Credit Application, an L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that permits the automatic reinstatement of all or a portion of the stated amount thereof after any drawing thereunder upon request to such L/C Issuer (each, an “Auto-Reinstatement Letter of Credit”). Each Auto-Reinstatement Letter of Credit shall permit the applicable L/C Issuer to decline to reinstate all or any portion of the stated amount thereof after a drawing thereunder by giving notice of such non-reinstatement within a specified number of days after such drawing (the “Non-Reinstatement Deadline”). Once an Auto-Reinstatement Letter of Credit has been issued, except as provided in the following sentence, the Incremental Revolving Lenders shall be deemed to have authorized (but may not require) the applicable L/C Issuer to reinstate all or a portion of the stated amount thereof in accordance with the provisions of such Letter of Credit. Notwithstanding the foregoing, the applicable L/C Issuer shall not permit such reinstatement if (A) such L/C Issuer has received a notice (which may be by telephone or in writing) on or before the day that is five Business Days before the Non-Reinstatement Deadline from the Administrative Agent or the Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied (treating such reinstatement as an L/C Credit Extension for purposes of this clause) and, in each case, directing the applicable L/C Issuer not to permit such reinstatement or (B) the Administrative Agent has not received a certificate from the Borrower on or before the day that is five Business Days before the Non-Reinstatement Deadline certifying to compliance with the proviso to the first sentence of Section 2.03(a) after giving effect to such reinstatement.
(v)    Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the applicable L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.
(c)    Drawings and Reimbursements; Funding of Participations.
(i)    Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the applicable L/C Issuer shall notify the Borrower and the Administrative Agent thereof. In the case of a Letter of Credit denominated in Dollars, the Borrower shall reimburse such L/C Issuer in Dollars. In the case of a Letter of Credit denominated in an Alternative Currency, the Borrower shall reimburse such L/C Issuer in such Alternative Currency, unless (A) such L/C Issuer (at its option) shall have specified in such notice that reimbursement in Dollars is preferred and the Borrower does not make payment in the applicable Alternative Currency on the Honor Date, in which case the Borrower shall reimburse such L/C Issuer in Dollars, or (B) otherwise, the Borrower shall have notified such L/C Issuer promptly following receipt of the notice of drawing that the Borrower will reimburse such L/C Issuer in Dollars. In the case of any such reimbursement in Dollars of a drawing under a Letter of Credit denominated in an Alternative Currency, such L/C Issuer shall notify the Borrower of the Dollar Equivalent of the amount of the drawing promptly following the determination thereof. The Borrower shall reimburse such L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing and in the applicable currency on the date on which the Borrower receives notice of any payment by such L/C Issuer under a Letter of Credit, if the Borrower receives notice by 12:00 p.m., New York City time for payment in Dollars or by the Applicable Time for payments in Alternative Currencies, or on the next Business Day if notice is

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not received by such time (each such date, an “Honor Date”). If the Borrower fails to so reimburse such L/C Issuer by the time set forth in the preceding sentence, the applicable L/C Issuer shall promptly notify the Administrative Agent of the Honor Date and the Unreimbursed Amount. The Administrative Agent shall promptly notify each Incremental Revolving Lender thereof and of the amount of such Incremental Revolving Lender’s Applicable Percentage thereof. Any notice given by an L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if promptly confirmed in writing; provided that the lack of such a prompt confirmation shall not affect the conclusiveness or binding effect of such notice.
(ii)    Each Incremental Revolving Lender shall upon any notice pursuant to Section 2.03(c)(i) make funds available to the Administrative Agent for the account of the applicable L/C Issuer, in Dollars, at the Administrative Agent’s Office in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m., New York City time, on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each Incremental Revolving Lender that so makes funds available shall be deemed to have made an Incrementala Revolving Loan constituting a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the applicable L/C Issuer in Dollars.
(iii)    With respect to any Unreimbursed Amount that is not repaid or fully refinanced by an Incrementala Revolving Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the applicable L/C Issuer an L/C Borrowing in Dollars in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at (A) the rate applicable to Base Rate Loans from the Honor Date to the date reimbursement is required pursuant to Section 2.03(c)(i) and (B) thereafter, the Default Rate. Each Incremental Revolving Lender’s payment to the Administrative Agent for the account of the applicable L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03.
(iv)    Until each Incremental Revolving Lender funds its L/C Advance pursuant to this Section 2.03(c) to reimburse the applicable L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Incremental Revolving Lender’s Applicable Percentage of such amount shall be solely for the account of such L/C Issuer.
(v)    Each Incremental Revolving Lender’s obligation to make L/C Advances to reimburse the L/C Issuers for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Incremental Revolving Lender may have against any L/C Issuer, the Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Incremental Revolving Lender’s obligation to make Incremental Revolving Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 4.02 (other than delivery by the Borrower of a Borrowing Notice). No such making of an L/C

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Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the applicable L/C Issuer for the amount of any payment made by the such L/C Issuer under any Letter of Credit, together with interest as provided herein.
(vi)    If any Incremental Revolving Lender fails to make available to the Administrative Agent for the account of the applicable L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii), such L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to such L/C Issuer at a rate per annum equal to the applicable OvernightNYFRB Rate from time to time in effect. A certificate of the applicable L/C Issuer submitted to any Incremental Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this Section 2.03(c)(vi) shall be conclusive, absent manifest error.
(d)    Repayment of Participations.
(i)    At any time after an L/C Issuer has made a payment under any Letter of Credit and has received from any Incremental Revolving Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c), if the Administrative Agent receives for the account of such L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Applicable Percentage thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s L/C Advance was outstanding) in Dollars and in the same funds as those received by the Administrative Agent.
(ii)    If any payment received by the Administrative Agent for the account of an L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by such L/C Issuer in its discretion), each Incremental Revolving Lender shall pay to the Administrative Agent for the account of such L/C Issuer its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the applicable OvernightNYFRB Rate from time to time in effect. The obligations of the Lenders under this clause shall survive Payment in Full and the termination of this Agreement.
(e)    Obligations Absolute. The obligation of the Borrower to reimburse each L/C Issuer for each drawing under each Letter of Credit and to repay each Unreimbursed Amount shall be absolute, unconditional and irrevocable under all circumstances, including the following:
(i)    any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Loan Document;
(ii)    the existence of any claim, counterclaim, setoff or defense to payment that the Borrower or any Restricted Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such

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transferee may be acting), any L/C Issuer or any Incremental Revolving Lender, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
(iii)    any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit, except to the extent caused by the applicable L/C Issuer’s gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction;
(iv)    any payment by the applicable L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit, so long as such L/C Issuer shall have determined in the absence of gross negligence or willful misconduct, in good faith and in accordance with the standard of care specified in the Uniform Commercial Code of the State of New Yorkas determined by a final, non-appealable judgment of a court of competent jurisdiction, that the documents (including each draft) delivered under such Letter of Credit in connection with such presentment appear on their face to be in conformity with such Letter of Credit;
(v)    any adverse change in the relevant exchange rates or in the availability of the relevant Alternative Currency to the Borrower or any Restricted Subsidiary or in the relevant currency markets generally; or
(vi)    any other action taken or omitted to be taken by an L/C Issuer under or in connection with any Letter of Credit or the related drafts or documents, whether or not similar to any of the foregoing, if done in the absence of gross negligence or willful misconduct, in good faith and in accordance with the standards of care specified in the Uniform Commercial Code of the State of New Yorkas determined by a final, non-appealable judgment of a court of competent jurisdiction.
The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s instructions or other irregularity, the Borrower will promptly notify the applicable L/C Issuer. The Borrower shall be conclusively deemed to have waived any such claim against the applicable L/C Issuer and its correspondents unless such notice is given as aforesaid.
(f)    Role of L/C Issuer. Each Incremental Revolving Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, no L/C Issuer shall have any responsibility to obtain any document (other than any documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuers, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuers shall be liable to any Incremental Revolving Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Incremental Revolving

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Lenders or the Required Revolving Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. Notwithstanding anything to the contrary herein, the Borrower may have a claim against an L/C Issuer, and an L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused by such L/C Issuer’s willful misconduct or gross negligence or such L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary or transferee of documents strictly complying with the terms and conditions of a Letter of Credit, as determined by a final, non-appealable judgment of a court of competent jurisdiction. In furtherance and not in limitation of the foregoing, an L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and an L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.
(g)    Cash Collateral. If any L/C Obligation (x) has a stated maturity date or an expiration date that extends beyond the Incremental Revolving Facility Maturity Date or has no stated expiry or maturity date, or (y) provides for automatic extensions of the stated maturity date or the expiration date thereof, in each case, beyond the Incremental Revolving Facility Maturity Date, then the Borrower shall Cash Collateralize (i) any portion of such Letter of Credit described in clause (x) above that remains outstanding 15 days prior to the Incremental Revolving Facility Maturity Date (or such shorter time as the Administrative Agent and any applicable L/C Issuer shall agree) and (ii) any portion of such Letter of Credit described in clause (y) above that remains outstanding 15 days prior to the date on which the applicable L/C Issuer must deliver notice electing not to extend such Letter of Credit (or such shorter time as the Administrative Agent and any applicable L/C Issuer shall agree).
(h)    Applicability of ISP and UCP. Unless otherwise expressly agreed by the applicable L/C Issuer and the Borrower when a Letter of Credit is issued, with respect to Letters of Credit other than Bank Guarantees, the rules of the ISP shall apply to each standby Letter of Credit and the rules of the UCP shall apply to each commercial Letter of Credit.
(i)    Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the account of each Incremental Revolving Lender in accordance with its Applicable Percentage for the Incremental Revolving Facility a Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit issued on behalf of the Borrower equal to the Applicable Rate for Eurocurrency Rate Loans times the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit. For purposes of computing the daily amount available to be drawn under any Letter of Credit issued on behalf of the Borrower, the amount of such Letter of Credit shall be

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determined in accordance with Section 1.08. The Letter of Credit Fees shall be (x) computed on a quarterly basis in arrears and (y) due and payable on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. Notwithstanding anything to the contrary contained herein, all Letter of Credit Fees shall accrue at the Default Rate (i) automatically if such Letter of Credit Fee is not paid when due, whether at stated maturity, by acceleration or otherwise and (ii) while any other Event of Default exists upon the request of the Required Revolving Lenders.
(j)    Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The Borrower shall pay directly to the applicable L/C Issuer for its own account, in Dollars, a fronting fee with respect to each Letter of Credit issued by such L/C Issuer at the rate of 0.125% per annum on the face amount of each such Letter of Credit, computed on the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears (any such fronting fee, a “Fronting Fee”). Fronting Fees shall be due and payable on the date that is ten Business Days after the last day of each March, June, September and December in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand; provided that, notwithstanding the foregoing, except in the event that there exists any Event of Default under Section 8.01(f) when such Fronting Fee is due, the Fronting Fee shall be due but not payable until five days following receipt by Borrower of an invoice from the applicable L/C Issuer setting forth the amount payable. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.08. In addition, the Borrower shall pay directly to the applicable L/C Issuer for its own account, in Dollars, the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of such L/C Issuer relating to letters of credit or bank guarantees, as applicable, as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.
(k)    Conflict with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.
(l)    Letters of Credit Issued for Restricted Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Restricted Subsidiary, the Borrower shall be obligated to reimburse the applicable L/C Issuer hereunder for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of Credit for the account of Restricted Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s business derives substantial benefits from the businesses of such Restricted Subsidiaries.
(m)    Additional L/C Issuer. Any Person permitted to become an L/C Issuer pursuant to the definition of L/C Issuer may become an L/C Issuer under this Agreement with the obligations, rights, powers and privileges of an L/C Issuer hereunder by executing a joinder, in a form reasonably satisfactory to (and acknowledged and accepted by) the Administrative Agent, indicating such Lender’s L/C Issuance Limit and, upon the execution and delivery of any such joinder, such Lender shall be an L/C Issuer for all purposes hereof.

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(n)     Reallocation. If at any time prior to the termination in full of the Revolving Facility, a portion of the Revolving Commitments of any Lender expire as a result of the occurrence of the Revolving Facility Maturity Date with respect thereto, then, the participation obligations with respect to existing Letters of Credit shall be fully reallocated to the remaining Revolving Lenders (subject to the limitations set forth in Section 2.03(a)(i) as if such Letters of Credit were being issued at such time) or such L/C Issuer shall enter into arrangements satisfactory to it (such as through the posting of Cash Collateral) with the Borrower to eliminate such L/C Issuer’s risk with respect to such expiring Revolving Commitments.
2.04    [Reserved].
2.05    Prepayments and Commitment Reductions.
(a)    Voluntary Prepayments. The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Loans in whole or in part, subject to Section 2.05(i), without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m., New York City time (or such other later time which is acceptable to the Administrative Agent), (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans, and (B) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, the entire amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s ratable portion of such prepayment (based on such Lender’s Applicable Percentage in respect of the relevant Facility). If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; provided that any such notice may be contingent upon the consummation of a refinancing and such notice may otherwise be extended or revoked, in each case, with the requirements of Section 3.05 to apply to any failure of the contingency to occur and any such extension or revocation. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05. Each prepayment of the outstanding Loans pursuant to this Section 2.05(a) shall be applied to the Type(s) of Loan(s) in the manner as the Borrower shall direct, and each prepayment of Loans shall be paid to the Lenders in accordance with their respective Applicable Percentages in respect of each of the relevant Facilities; provided, in the event the Borrower fails to specify the Loans to which any such prepayments shall be applied, such prepayments shall be applied, first, to repay outstanding Incremental Revolving Loans (if any) to the full extent thereof (without a corresponding reduction in the Incremental Revolving Commitments with respect thereto) and second, to prepay the Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) and further applied to reduce the scheduled remaining installments of principal of the Term Loans in direct order of maturity.

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(b)    [Reserved].
(c)    If the Administrative Agent notifies the Borrower at any time that the Dollar Equivalent of the Total Revolving Credit Outstandings at such time exceeds the Incremental Revolving Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Incremental Revolving Loans and/or shall Cash Collateralize the L/C Obligations in an aggregate amount sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Incremental Revolving Commitments then in effect; provided, however, that, subject to the provisions of Section 2.03(g), the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(c) unless, after the prepayment of the Incremental Revolving Loans, the Total Revolving Credit Outstandings exceed the Incremental Revolving Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the incremental effects of further exchange rate fluctuations if the Dollar Equivalent of the Total Revolving Credit Outstandings at such time less the amount of Cash Collateral held by the Administrative Agent for L/C Obligations exceeds the Incremental Revolving Commitments then in effect.
(d)    [Reserved].
(e)    Asset Sales. No later than ten Business Days following the consummation of any Asset Sale by the Borrower or a Restricted Subsidiary pursuant to Sections 7.05(c), 7.05(k), 7.05(l) and 7.05(q) that results in the amount of Net Proceeds (as of the date of such receipt) exceeding $10,000,000 (such excess amount, the “Excess Proceeds”), the Borrower shall make (or cause to be made) a prepayment of the Loans as specified in Section 2.05(k) below in an amount equal to the lesser of (x) 100% of such Excess Proceeds and (y) the aggregate principal amount of the Loans then outstanding (the “Asset Sale Sweep Provision”), if any, in each case subject to the following:
(i)    If prior to the date of any such required prepayment, the Borrower notifies the Administrative Agent in writing of the Borrower’s and/or its Restricted Subsidiary’s intention to reinvest the Excess Proceeds of any Asset Sale in assets that are, in the reasonable business judgment of the Borrower, useful in the business of the Borrower or some or all of its Restricted Subsidiaries (including by way of any Permitted Acquisition) and certifies in such notice that no Event of Default then exists, then the Borrower shall not be required to make a prepayment to the extent (x) the Excess Proceeds are so reinvested within 365 days following receipt thereof by the Borrower and/or such Restricted Subsidiary, or (y) if the Borrower and/or such Restricted Subsidiary, as applicable, has committed in writing to so reinvest such Excess Proceeds during such 365-day period, such Excess Proceeds are so reinvested within 180 days after the expiration of such 365-day period; provided that, to the extent such Excess Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the outstanding Loans as specified in Section 2.05(k) below after the expiration of such period in an amount equal to the amount required by the Asset Sale Sweep Provision where, subject to Section 2.05(e)(v), the amount of Excess Proceeds for such purposes shall be the amount of Excess Proceeds not reinvested as set forth above; provided, further that, if such Asset Sale includes a Disposition of any Collateral, the assets in which the portion of Excess

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Proceeds derived from such Collateral are so reinvested as set forth above shall be reinvested in assets of one or more Loan Parties and the applicable Loan Party shall comply with Section 6.16 with respect to such assets as if such assets were acquired on the date of such reinvestment.
(ii)    Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05.
(iii)    [Reserved].
(iv)    Notwithstanding anything to the contrary herein, with respect to the Metropolitan Collieries Disposition, the Borrower’s obligation to repay the Loans pursuant to this Section 2.05(e) shall be limited to the lesser of (x) the Excess Proceeds as a result of the Metropolitan Collieries Disposition and (y) the amount by which the amount of Unrestricted Cash of the Borrower and its Restricted Subsidiaries immediately after giving effect to such Metropolitan Collieries Disposition and the receipt of the proceeds of such Disposition exceeds $800,000,000.[Reserved].
(v)    The amount of repayments required to be made pursuant to this Section 2.05(e) shall be reduced by an amount equal to the sum of the amount of any voluntary repayments of the Loans made with such Net Proceeds from the relevant Asset Sale.
(f)    Issuance of Debt. On the first Business Day following receipt by Borrower or any of its Restricted Subsidiaries of any cash proceeds from the incurrence of any Indebtedness of Borrower or any of its Restricted Subsidiaries (other than with respect to Indebtedness permitted to be incurred pursuant to Section 7.03 but including Permitted Refinancing Indebtedness in respect of the Term Loans), Borrower shall prepay the Loans as specified in Section 2.05(k) below in an aggregate amount equal to 100% of such proceeds, net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith, including reasonable legal fees and expenses.
(g)    Excess Cash Flow. In the event that there shall be Excess Cash Flow for any fiscal year (commencing with the fiscal year ending December 31, 20182019), Borrower shall, no later than one hundred days after the end of such fiscal year, prepay the Loans in an aggregate amount equal to (i) 75% of such Excess Cash Flow minus (ii) voluntary repayments of the Term Loans made with Internally Generated Cash (excluding, for the avoidance of doubt, (x) repurchases of Term Loans pursuant to Sections 2.19 and 2.20 and (y) repayments of Term Loans made with the Cash proceeds of any Permitted Refinancing Indebtedness); provided, that if, as of the last day of the most recently ended fiscal year (commencing with the payment due one hundred days after December 31, 20182019), the Total Leverage Ratio (determined for any such period by reference to the Compliance Certificate delivered pursuant to Section 6.02(b) calculating the Total Leverage Ratio as of the last day of such fiscal year) shall be (1) less than or equal to 2.00:1.00 and greater than 1.50:1.00, Borrower shall only be required to make the prepayments otherwise required hereby in an amount equal to (i) 50% of such Excess Cash Flow minus (ii) voluntary repayments of the Term Loans made with Internally Generated Cash (excluding, for the avoidance of doubt, (x) repurchases of Term Loans pursuant to Sections 2.19 and 2.20 and (y) repayments of Term Loans made with the Cash proceeds of any Permitted

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Refinancing Indebtedness); (2) less than or equal to 1.50:1.00 and greater than 1.00:1.00, Borrower shall only be required to make the prepayments otherwise required hereby in an amount equal to (i) 25% of such Excess Cash Flow minus (ii) voluntary repayments of the Term Loans made with Internally Generated Cash (excluding, for the avoidance of doubt, (x) repurchases of Term Loans pursuant to Sections 2.19 and 2.20 and (y) repayments of Term Loans made with the Cash proceeds of any Permitted Refinancing Indebtedness); and (3) less than or equal to 1.00:1.00, Borrower shall not be required to make the prepayments otherwise required hereby.
(h)    Insurance/Condemnation Proceeds. No later than ten Business Days following the date of receipt by Borrower or any of its Restricted Subsidiaries, or Administrative Agent or Collateral Trustee as loss payee, of any Net Insurance/Condemnation Proceeds, Borrower shall prepay the Loans as specified in Section 2.05(k) below in an aggregate amount equal to such Net Insurance/Condemnation Proceeds; provided, if prior to the date of any such required prepayment, the Borrower notifies the Administrative Agent in writing of the Borrower’s and/or its Restricted Subsidiary’s intention to reinvest the Net Insurance/Condemnation Proceeds in assets that are, in the reasonable business judgment of the Borrower, useful in the business of the Borrower or some or all of its Restricted Subsidiaries (including by way of any Permitted Acquisition) (or used to replace damaged or destroyed assets) and certifies in such notice that no Event of Default then exists, then the Borrower shall not be required to make a prepayment to the extent (x) the Net Insurance/Condemnation Proceeds are so reinvested within 365 days following receipt thereof by the Borrower and/or such Restricted Subsidiary, or (y) if the Borrower and/or such Restricted Subsidiary, as applicable, has committed in writing to so reinvest such Net Insurance/ Condemnation Proceeds during such 365-day period, such Net Insurance/Condemnation Proceeds are so reinvested within 180 days after the expiration of such 365-day period; provided that, to the extent such Net Insurance/Condemnation Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the outstanding Loans as specified in Section 2.05(k) below after the expiration of such period in an amount equal to such Net Insurance/Condemnation Proceeds less any amount so reinvested; provided, further that, if such casualty or taking includes any Collateral, the assets in which the portion of Net Insurance/Condemnation Proceeds derived from such Collateral are so reinvested as set forth above shall be reinvested in assets of one or more Loan Parties and the applicable Loan Party shall comply with Section 6.16 with respect to such assets as if such assets were acquired on the date of such reinvestment.
(i) Call Protection. In the event all or any portion of the Term Loans incurred on the Fourth Amendment Effective Date is repaid (or repriced or effectively refinanced through any amendment, including, without limitation, through a Refinancing Facility) for any reason (other than voluntary prepayments with Internally Generated Cash, mandatory prepayments required pursuant to Sections 2.05(g) and 2.05(h) and repayments made pursuant to Section 2.07) prior to the six-month anniversary of the Fourth Amendment Effective Date, such repayments, repricing or effective refinancings will be made at 101.0% of the principal amount repaid, repriced or effectively refinanced if such repayment, repricing or refinancing occurs on or prior to the six-month anniversary of the Fourth Amendment Effective Date.
(i)    [Reserved].

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(j)    Repatriation. Notwithstanding the foregoing, if the Borrower reasonably determines in good faith that any amounts attributable to Foreign Subsidiaries that are required to be prepaid pursuant to Sections 2.05(e) and 2.05(h) would result in material adverse tax consequences or violate any applicable local law in respect of upstreaming proceeds (including financial assistance and corporate benefit restrictions and statutory duties of the relevant directors), in each case as set forth in a certificate delivered by a Responsible Officer of the Borrower to the Administrative Agent, then such Borrower and its Restricted Subsidiaries shall not be required to prepay such amounts as required under Sections 2.05(e) and 2.05(h) the repatriation of which would result in such tax consequence or violation until such material tax consequences or local law violation no longer exist; provided that, for a period of one year following the date on which such payment was originally required, the Borrower and its Restricted Subsidiaries shall take commercially reasonable actions to permit repatriation of the proceeds subject to such prepayments in order to effect such prepayments without violating local law or incurring such material adverse tax consequences.
(k)    Application of Mandatory Prepayments. Each prepayment of the outstanding Loans pursuant to Sections 2.05(e) through 2.05(h) above shall be applied, first, pro rata to the remaining scheduled installment payments of the Term Loans in direct order of maturity, second, to repay the Incremental Revolving Loans (without a corresponding reduction in the Incremental Revolving Commitments with respect thereto) and third, to Cash Collateralize Letters of Credit issued hereunder, in form and substance reasonably satisfactory to the applicable L/C Issuer. Each prepayment of Loans shall be paid to the Lenders in accordance with their respective Applicable Percentages.
(l)    Additional Limitations. Notwithstanding anything to the contrary herein, the Borrower may apply amounts otherwise required to make prepayments pursuant to Sections 2.05(e), (g) and (h) to repay (x) with respect to Sections 2.05(e) and (h), any Indebtedness that was secured by any assets not constituting Collateral sold in such Asset Sale or the loss of which resulted in Net Insurance/Condemnation Proceeds, as applicable, to the extent such repayment is required by such Indebtedness as a result of such Asset Sale or loss and (y) a ratable portion of Indebtedness permitted to be incurred pursuant to Section 7.03 and secured by liens on a pari passu basis pursuant to Section 7.01 (including, for the avoidance of doubt, the Priority Lien Notes Indebtedness, Incremental Debt and Permitted Refinancing Indebtedness of the foregoing), in the case of this clause (y), in respect of which a prepayment (or offer of prepayment) is required to be made with respect to such pari passu Indebtedness with such Excess Proceeds, Net Insurance/Condemnation Proceeds or Excess Cash Flow (determined on the basis of the aggregate outstanding principal amount of the Loans and such other Indebtedness outstanding at such time).
(m)    ABL Facility. Notwithstanding anything to the contrary in Sections 2.05(e) and 2.05(h), if any Indebtedness under any ABL Facility is outstanding, to the extent a prepayment or cash collateralization of letters of credit is required under such ABL Facility due to any Net Proceeds or Net Insurance/Condemnation Proceeds constituting the proceeds of ABL Priority Collateral, no prepayment shall be required under Sections 2.05(e) and 2.05(h) to the extent of such required payment under such ABL Facility.[Reserved].

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(n)    Waivable Mandatory Prepayment. Anything contained herein to the contrary notwithstanding, in the event the Borrower is required to make any mandatory prepayment (a “Waivable Mandatory Prepayment”), not less than five Business Days prior to the date (the “Required Prepayment Date”) on which the Borrower is required to make such Waivable Mandatory Prepayment, the Borrower shall notify the Administrative Agent of the amount of such prepayment, and the Administrative Agent will promptly thereafter notify each Lender of the amount of such Lender’s Applicable Percentage of such Waivable Mandatory Prepayment and such Lender’s option to refuse such amount. Each such Lender may exercise such option by giving written notice to the Borrower and the Administrative Agent of its election to do so on or before the third Business Day prior to the Required Prepayment Date (it being understood that any Lender which does not notify the Borrower and the Administrative Agent of its election to exercise such option on or before the third Business Day prior to the Required Prepayment Date shall be deemed to have elected, as of such date, not to exercise such option). On the Required Prepayment Date, (i) the Borrower shall pay to the Administrative Agent an amount equal to that portion of the Waivable Mandatory Prepayment that is payable to those Lenders that have elected not to exercise such option, to prepay the Loans of such Lenders (which prepayment shall be applied in accordance with the terms of this Section 2.05), and (ii) the portion of the Waivable Mandatory Prepayment otherwise payable to Lenders that have elected to exercise such option (“Declined Proceeds”) may be retained by the Borrower to be used for any purpose not prohibited hereunder.
2.06    Optional Termination or Reduction of Revolving Credit Commitments.
(a)    Optional. The Borrower may, upon notice to the Administrative Agent, terminate the Incremental Revolving Commitments, or from time to time permanently reduce the Incremental Revolving Commitments in whole or in part; provided that (i) any such notice shall be received by the Administrative Agent not later than 11:00 a.m., New York City time, three Business Days prior to the date of termination or reduction, (ii) any such partial reduction with respect to the Incremental Revolving Commitments shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof, and (iii) the Borrower shall not terminate or reduce the Incremental Revolving Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the total Outstanding Amount under the Incremental Revolving Facility would exceed the Incremental Revolving Commitments under the Incremental Revolving Facility. The Administrative Agent will promptly notify the Incremental Revolving Lenders of any such notice of the foregoing, and any such notice may be contingent upon the consummation of a refinancing and such notice may otherwise be extended or revoked.
(b)    Application of Commitment Reductions; Payment of Fees. Upon any reduction of the Incremental Revolving Commitments, the Incremental Revolving Commitment of each Incremental Revolving Lender shall be reduced by such Incremental Revolving Lender’s Applicable Percentage in respect of the Incremental Revolving FacilitiesFacility of such reduction amount. All fees and other amounts under this Agreement in respect of the Incremental Revolving FacilitiesFacility accrued until the effective date of any termination of the Incremental Revolving FacilitiesFacility shall be paid on the effective date of such termination.

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2.07    Repayment of Loans.
(a)    The Borrower shall repay to the Term Lenders on each date set forth below (or, if any such date is not a Business Day, the immediately preceding Business Day) the principal amount of Term Loans set forth opposite such date below:
Date
Amount
June 30, 2018
$1,000,000.00
September 30, 2018
$1,000,000.00
December 31, 2018
$1,000,000.00
March 31, 2019
$1,000,000.00
June 30, 2019
$1,000,000.00
September 30, 2019
$1,000,000.00
December 31, 2019
$1,000,000.00
March 31, 2020
$1,000,000.00
June 30, 2020
$1,000,000.00
September 30, 2020
$1,000,000.00
December 31, 2020
$1,000,000.00
March 31, 2021
$1,000,000.00
June 30, 2021
$1,000,000.00
September 30, 2021
$1,000,000.00
December 31, 2021
$1,000,000.00
March 31, 2022
$1,000,000.00
June 30, 2022
$1,000,000.00
September 30, 2022
$1,000,000.00
December 31, 2022
$1,000,000.00
March 31, 2023
$1,000,000.00
June 30, 2023
$1,000,000.00
September 30, 2023
$1,000,000.00
December 31, 2023
$1,000,000.00
March 31, 2024
$1,000,000.00
June 30, 2024
$1,000,000.00
September 30, 2024
$1,000,000.00
December 31, 2024
$1,000,000.00
Maturity Date
$373,000,000.00

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(b)    provided, however, that the final principal repayment installment of the Term Loans shall be repaid on the Maturity Date and in any event shall be in an amount equal to the aggregate principal amount of all Term Loans outstanding on such date.
(c)    (b) The Borrower shall repay to the Incremental Revolving Lenders on the Incrementalapplicable Revolving Facility Maturity Date the aggregate principal amount of all Incremental Revolving Loans outstanding on such date.
2.08    Interest.
(a)    Subject to the provisions of subsection (b) below, (i) each Eurocurrency Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurocurrency Rate for such Interest Period plus the Applicable Rate; and (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate.
(b)    If any amount of principal or interest of any Loan (or any other Obligations) is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.
(c)    Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.
2.09    Fees. In addition to certain fees described in subsections (i) and (j) of Section 2.03:
(a)    Commitment Fee. The Borrower shall pay to the Administrative Agent for the account of each Incremental Revolving Lender in accordance with its Applicable Percentage in respect of the Incremental Revolving Facility, a commitment fee in Dollars equal to 0.50%the Commitment Fee Rate times the actual daily amount by which the aggregate Incremental Revolving Commitments of all Incremental Revolving Lenders exceed the sum of (i) the Outstanding Amount of Incremental Revolving Loans and (ii) the Outstanding Amount of L/C Obligations of the Borrower, determined on the last day of the immediately preceding fiscal quarter. The commitment fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the SecondSeventh Amendment Effective Date (or, in the case of any incremental Revolving Facility other than the 2017 Incremental Revolving Facility, the applicable Incremental Facility Effective Date), and on the Incremental Revolving Facility Maturity Date.

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(b)    The Borrower shall pay to the Arrangers and the Agents for their own respective accounts, in Dollars, fees in the amounts and at the times specified in each of the Fee Letters. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
(c) If the Closing Date has not occurred on or prior to the date that is 31 days following the final allocation of the Term Loan Facility (such date, the “Start Date”), the Borrower agrees to pay (or cause to be paid) to the Arrangers (for the benefit of each Lender that has been allocated a portion of the Term Loan Facility) a fee (the “Ticking Fee”) in an amount equal to the sum of (a) for the period, if any, commencing on the Start Date and continuing through the earliest of (x) the date that is 61 days following the final allocation of the Term Loan Facility (such date, the “Step-Up Date”), (y) the Closing Date and (z) May 1, 2017 (or if the Borrower has elected to extend the date set forth in Section 4.01(n), such date as so extended but in any event no later than August 1, 2017) (the “Termination Date”), an amount equal to the product of (i) the aggregate principal amount of the commitments in respect of the Term Loan Facility that were so allocated multiplied by (ii) a per annum rate equal to 50.0% of the interest rate margin applicable to Eurocurrency Rate Loans, plus (b) for the period, if any, after the Step-Up Date through and including the earlier of (x) the date that is 121 days following allocation of the Term Loan Facility (the “Second Step-Up Date”), (y) the Closing Date and (z) the Termination Date, an amount equal to the product of (i) the aggregate principal amount of the commitments in respect of the Term Loan Facility that were so allocated multiplied by (ii) 100% of the interest rate margin applicable to Eurocurrency Rate Loans, plus (c) for the period, if any, after the Second Step-Up Date through and including the earlier of (x) the Closing Date and (y) the Termination Date, an amount equal to the product of (i) the aggregate principal amount of the commitments in respect of the Term Loan Facility that were so allocated multiplied by (ii) 100% of the interest rate (including the interest rate margin) applicable to Eurocurrency Rate Loans (including the LIBOR “floor”). The Ticking Fee shall be allocated among the Lenders that have been allocated a portion of the Term Loan Facility pro rata in accordance with their respective shares of the then-outstanding aggregate commitments in respect of the Term Loan Facility. The Ticking Fee shall be payable on the earlier of (a) the Closing Date and (b) the Termination Date.
2.10    Computation of Interest and Fees. All computations of interest for Base Rate Loans, where the rate of interest is calculated on the basis of the prime rate, and of Fronting Fees shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed. Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
2.11    Evidence of Debt. The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the

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amount of the Credit Extensions made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender to the Borrower made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loans to the Borrower in addition to such accounts or records. Each Lender may attach schedules to a Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.
In addition to the accounts and records referred to in subsection (a), each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit. In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.
2.12    Payments Generally; Administrative Agent’s Clawback.
(a)    General. All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars and in Same Day Funds not later than 2:00 p.m., New York City time, on the date specified herein. If, for any reason, the Borrower is prohibited by any Law from making any required payment hereunder in an Alternative Currency, the Borrower shall make such payment in Dollars in the Dollar Equivalent of the Alternative Currency payment amount. The Administrative Agent will promptly distribute to each Lender its Applicable Percentage of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 3:00 p.m., New York City time shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
(b)    (i)    Funding by Lenders; Presumption by Administrative Agent. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Eurocurrency Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 2:00 p.m., New York City time, on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section

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2.02) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in Same Day Funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the OvernightNYFRB Rate, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii)    Payments by Borrower; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or the L/C Issuer, in Same Day Funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the OvernightNYFRB Rate.
A notice of the Administrative Agent to any Lender or Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.
(c)    Failure to Satisfy Conditions Precedent. If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender to the Borrower as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall promptly return such funds (in like funds as received from such Lender) to such Lender, without interest.
(d)    Obligations of Lenders Several. The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to fund its participation or to make its payment under Section 10.04(c).

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(e)    Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
2.13    Pro Rata; Sharing of Payments by Lenders. Except as otherwise expressly provided in this Agreement, each payment (including each prepayment) by the Borrower on account of principal of and interest on any Term Loans or Incremental Revolving Loans shall be allocated by the Administrative Agent pro rata according to the respective outstanding principal amounts of the Loans of such Class then held by the respective Lenders of such Class. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Loans made by it (or the participation in L/C Obligations held by it) resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact and (b) purchase (for cash at face value) participations in the applicable Loans (and subparticipations in L/C Obligations) of the other Lenders of such Class, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans of the applicable Class and other amounts owing them, provided that:
(a)    if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(b)    the provisions of this Section shall not be construed to apply to (i) any payment made by the Borrower pursuant to and in accordance with the express terms of 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 Term Loans or Incremental Revolving Loans (or subparticipations in L/C Obligations) to any assignee or participant.
The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
2.14    [Reserved].
2.15    Incremental Debt.
(a)    Request for Incremental Facility. Upon notice (an “Incremental Facility Request”) to and approval (not to be unreasonably withheld or delayed) of the Administrative Agent (who shall promptly notify the existing Lenders), the Borrower may, without the consent of any Lender, request to add an incremental revolving credit facility or increase the principal

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amount of anythe existing incremental revolving facility (each anRevolving Facility (such increase, aIncremental Revolving Facility”) and/or one or more new incremental term loan facilities (each an “Incremental Term Facility”; each Incremental Revolving Facility and Incremental Term Facility, an “Incremental Facility”) in an aggregate principal amount, which when added to the aggregate principal amount of the other Incremental Debt outstanding does not exceed the Incremental Debt Cap as of the effective date of the Incremental Facility; provided that any such request for an Incremental Facility shall be in a minimum amount equal to the lesser of (x) $25,000,000 and (y) the entire amount that remains available for request under this Section 2.15.
(b)    Incremental Facility Request. Each Incremental Facility Request from the Borrower shall set forth (i) the requested principal amount of the Incremental Facility, (ii) the proposed terms of the Incremental Facility (including its interest rate and, if an Incremental Term Facility is being requested, amortization and any prepayment premiums) and (iii) whether an Incremental Revolving Facility or Incremental Term Facility is being requested. An Incremental Facility may be provided by (A) an existing Lender (but no Lender shall be obligated to provide a commitment in respect of an Incremental Facility, nor shall the Borrower have any obligation to approach any existing Lenders to provide a commitment in respect of an Incremental Facility) or (B) any other Incremental Lender so long as any such Person is approved by the Administrative Agent and any other Person who would have consent rights pursuant to Section 10.06(b) if such Incremental Lender was becoming an Incrementala Revolving Lender or a Term Lender, as applicable. Subject to any such consents being received and if not already a party hereto, any such Incremental Lender may become a party to this Agreement by entering into an Incremental Amendment or other joinder agreement in form and substance reasonably satisfactory to the Administrative Agent.
(c)    Closing Date and Allocations. In connection with any Incremental Facility, the Administrative Agent and the Borrower shall determine the effective date (the “Incremental Facility Effective Date”). The Administrative Agent shall promptly notify the Borrower and the Lenders of the principal amount of the Incremental Facility and the Incremental Facility Effective Date.
(d)    Conditions to Effectiveness of Incremental Facility. The effectiveness of each Incremental Facility shall be subject to the following conditions:
(i)    as of the Incremental Facility Effective Date, (A) the representations and warranties contained in Article V (or, in the case of any Incremental Facility being requested in connection with a Permitted Acquisition, the Specified Representations and Acquisition Agreement Representations in the Acquisition Agreement for such Permitted Acquisition) are true and correct in all material respects on and as of the Incremental Facility Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and (ii) (A) if such Incremental Facility is being requested in connection with a Permitted Acquisition, no Event of Default under Sections 8.01(a), (f), or (g) has occurred or is continuing or would immediately result therefrom, unless such conditions would not be permitted by applicable Law (e.g., in an Australian acquisition context), in which case the satisfaction of such conditions shall


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not be required, and (B) otherwise, no Default or Event of Default has occurred or is continuing or would immediately result therefrom;
(ii)    such Incremental Facility shall have the same guarantees as, and be secured on a pari passu basis with, the Secured Obligations; provided that, if agreed by the Borrower and the relevant Incremental Lenders, the Incremental Facility may be subject to lesser guarantees or be unsecured or less secured, or the Liens securing the Incremental Facility may rank junior to the Liens securing the Term Loan Facility and the 2017 Incremental Revolving Facility;
(iii)    in the event such Incremental Facility is an Incremental Term Facility, such Incremental Facility shall (A) have a final maturity no earlier than the Maturity Date, (B) have a weighted average life no shorter than that of the Term Loan Facility and any other Incremental Term Facilities outstanding and (C) not have any terms which require it to be voluntarily or mandatorily prepaid prior to the repayment in full of the Term Loans (including any other Incremental Term Loans), unless accompanied by at least a ratable payment of the Term Loans;
(iv)    in the event such Incremental Facility is an Incrementala Revolving Facility, (A) the terms and provisions of all Incremental Revolving Facilities shall be identical to the Revolving Facility terms and provisions (other than the provisions solely applicable to the 2017 Incremental Revolving Facility); and (B) the Borrower shall use the proceeds (including any Letters of Credit issued thereunder) of such Incremental Revolving Facilities for working capital and general corporate purposes; and
(v)    The terms, provisions and documentation of an Incremental Facility shall be as agreed between the Borrower and the Incremental Lenders providing such Incremental Facility, and to the extent such terms and documentation for the Incremental Facility are not substantially consistent with the applicable Loan Documents, they shall be reasonably satisfactory to the Administrative Agent, unless such terms (A) are more favorable to the Borrower, taken as a whole, than the Loan Documents in respect of the Facilities (or the Lenders under the Facilities receive the benefit of the more restrictive terms, which, for avoidance of doubt, may be provided to them without their consent), in each case, as certified by a Responsible Officer of the Borrower in good faith, (B) concern pricing (including interest rates, rate floors, fees, OID or other fees), the amortization schedule, commitment reductions, prepayments and any prepayment premiums applicable to such Incremental Facility or (C) apply after the latest then applicable Maturity Date; provided that, (x) a financial maintenance covenant may be added for the benefit of the Incremental Revolving Facilities (but not for the benefit of the Term Loan Facility or any Incremental Term Facility) without the consent of the Administrative Agent or any of the Lenders other than the Incremental Revolving Lenders and (y) to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Facility, no consent shall be required from the Administrative Agent to the extent that such financial maintenance covenant is also added for the benefit of the existing Term Loan Facility and any existing Incremental Facility existing at the time such subsequent Incremental Term Facility is incurred.

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(e)    Most Favored Nations. If any Incremental Term Facility is incurred after the ClosingSeventh Amendment Effective Date, in the event that the Weighted Average Yield for any Incremental Term Facility exceeds the Weighted Average Yield for the Term Loan Facility by more than 50 basis points (the “Excess”), then the interest rate margins for the Term Loan shall be increased to the extent necessary to eliminate such Excess; provided that, in determining the Weighted Average Yield applicable to the Incremental Term Facility and the Term Loan Facility, (i) customary arrangement, structuring or commitment fees payable to the Arrangers or any bookrunner (or their respective affiliates) in connection with the Term Loan or to one or more arrangers or bookrunners (or their respective affiliates) of any Incremental Term Facility shall be excluded, (ii) OID and upfront fees paid to the lenders thereunder shall be included (with OID being equated to interest based on an assumed four-year life to maturity or, if shorter, the actual weighted average life to maturity) and (iii) if the Incremental Term Facility includes an interest rate floor greater than the applicable interest rate floor under the existing Term Loan Facility, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the existing Term Loan Facility shall be required, but only to the extent an increase in the interest rate floor in the existing Term Loan Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to the existing Term Loan Facility may be increased to the extent necessary in respect of such differential between interest rate floors; provided that each basis point increase to the interest rate floor of the Term Loans shall count as one basis point of increase in the interest rate margin to the Term Loans for purposes of eliminating the Excess.
(f)    On each Incremental Facility Effective Date with respect to each Incremental Revolving Facility, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender providing such Incremental Revolving Facility shall make the Incremental Facility available to the Borrower, (ii) each of the existing Incremental Revolving Lenders (if any) shall assign to each of the new Incremental Revolving Lenders, and each of the new Incremental Revolving Lenders shall purchase from each of the existing Incremental Revolving Lenders (if any), at the principal amount thereof (together with accrued interest), such interests in the Incremental Revolving Loans outstanding on such Incremental Facility Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Incremental Revolving Loans will be held by existing Incremental Revolving Lenders and new Incremental Revolving Lenders ratably in accordance with their Incremental Revolving Commitments after giving effect to the addition of such new Incremental Revolving Commitments to the existing Incremental Revolving Commitments and (iii) each Incremental Revolving Lender shall become a Lender hereunder with respect to the Incremental Revolving Commitments and the Incremental Revolving Loans made pursuant thereto.
(g)    Amendment. With the consent of the Lenders providing an Incremental Facility, the Borrower and the Administrative Agent (and without the consent of the other Lenders), this Agreement shall be amended in a writing (which may be executed and delivered by the Borrower and the Administrative Agent) (the “Incremental Amendment”) to reflect any changes necessary to give effect to such Incremental Facility in accordance with its terms (including, without limitation, to give such Incremental Facility the benefits of Section 2.05, as applicable). Each Incremental Facility shall be effected pursuant to an Incremental Amendment, which shall be recorded in the Register, and each Incremental Lender providing such Incremental Facility shall

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be subject to the requirements set forth in Section 3.01(e). The Incremental Amendment with respect to an Incremental Revolving Facility may include, among other things, customary provisions regarding (i) Letters of Credit and reimbursement obligations with respect thereto, (ii) cash collateral obligations with respect to Letters of Credit, (iii) swing line loans and participations therein, and (iv) Incremental Revolving Lenders that are Defaulting Lenders. In connection with any Incremental Amendment, the Borrower shall deliver or cause to be delivered within the time period requested by the Administrative Agent, any legal opinions, mortgage modifications, amendments to Security Documents or other documents, in each case, as reasonably requested by the Administrative Agent in connection with such transaction.
(h)    Conflicting Provisions. This Section shall supersede any provisions in Section 2.13 to the contrary.
2.16    Refinancing Debt.
(a)    Refinancing Facility. The Borrower may, without the consent of any Lender, extend, refinance, renew or replace, in whole or in part, the Loans under any Facility or the Commitments under the Incremental Revolving Facility with one or more term loan facilities (each, a “Refinancing Term Facility”) or one or more revolving credit facilities (each, a “Refinancing Revolving Facility”) (each Refinancing Term Facility and Refinancing Revolving Facility, a “Refinancing Facility”); provided that any such request for a Refinancing Facility shall be in a minimum amount equal to the lesser of (i) $25,000,000 and (ii) the entire amount of any Facility which is being extended, refinanced, renewed or replaced under this Section 2.16.
(b)    Refinancing Facility Lender. A Refinancing Facility may be provided by (i) an existing Lender (but no Lender shall be obligated to provide a commitment in respect of a Refinancing Facility, nor shall the Borrower have any obligation to approach any existing Lenders to provide a commitment in respect of a Refinancing Facility) or (ii) any other Refinancing Facility Lender so long as any such Person is approved by the Administrative Agent and any other Person who would have consent rights pursuant to Section 10.06(b) if such Refinancing Facility Lender was becoming an Incrementala Revolving Lender or Term Lender, as applicable. Subject to any such consents being received and if not already a party hereto, any such Refinancing Facility Lender may become a party to this Agreement by entering into a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent.
(c)    Effective Date. In connection with any Refinancing Facility, the Administrative Agent and the Borrower shall determine the effective date (the “Refinancing Facility Effective Date”). The Administrative Agent shall promptly notify the Borrower and the Lenders of the principal amount of the Refinancing Facility and the Refinancing Facility Effective Date.
(d)    Conditions to Effectiveness of Refinancing Facility. The effectiveness of each Refinancing Facility shall be subject to the following conditions:
(i)    the aggregate principal amount (or accreted value, if applicable) of any Refinancing Facility will not exceed the outstanding aggregate principal amount (or accreted value, if applicable) of any Facility which it is extending, refinancing, renewing or replacing plus any Permitted Refinancing Increase, unless such additional principal amount would otherwise be

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permitted pursuant to (and any such additional amount shall be deemed to have been incurred under) Section 7.03 and, if applicable, Section 7.01;
(ii)    such Refinancing Facility shall have the same guarantees as, and be secured on a pari passu basis with, the Secured Obligations; provided that, if agreed by the Borrower and the relevant Refinancing Facility Lenders, the Refinancing Facility may be subject to lesser guarantees or be unsecured or less secured, or the Liens securing the Refinancing Facility may rank junior to the Liens securing the Incremental Revolving Facility and Term Loan Facility;
(iii)    in the event such Refinancing Facility is a Refinancing Term Facility, such Refinancing Facility (A) shall have (1) a final maturity no earlier than the Maturity Date and (2) a weighted average life no shorter than that of the Term Loan Facility and (B) shall not have any terms which require it to be voluntarily or mandatorily prepaid prior to the repayment in full of the Term Loans, unless accompanied by at least a ratable payment of the Term Loans;
(iv)    in the event such Refinancing Facility is a Refinancing Revolving Facility, such Refinancing Facility shall have a final maturity no earlier than the Incremental Revolving Facility Maturity Date and shall require no amortization or mandatory commitment reduction prior to the Incremental Revolving Facility Maturity Date, unless accompanied by at least ratable amortization or mandatory commitment reduction, as applicable, of the Incremental Revolving Loans; and
(v)    to the extent such terms and documentation for the Refinancing Facility are not substantially consistent with the applicable Loan Documents, they shall be reasonably satisfactory to the Administrative Agent, unless such terms (A) are more favorable to the Borrower, taken as a whole, than the Loan Documents in respect of the Incremental Revolving Facility, in the case of a Refinancing Revolving Facility, or the Term Loan Facility, in the case of a Refinancing Term Facility (or the Lenders under the Incremental Revolving Facility or Term Loan Facility, as applicable, receive the benefit of the more restrictive terms, which, for avoidance of doubt, may be provided to them without their consent), in each case, as certified by a Responsible Officer of the Borrower in good faith, (B) concern pricing (including interest rates, rate floors, fees, OID or other fees), the amortization schedule, commitment reductions, prepayments and any prepayment premiums applicable to such Refinancing Facility or (C) apply after the Maturity Date.
(e)    Amendment. With the consent of the Lenders providing a Refinancing Facility, the Borrower and the Administrative Agent (and without the consent of the other Lenders), this Agreement shall be amended in a writing (which may be executed and delivered by the Borrower and the Administrative Agent) to reflect any changes necessary to give effect to such Refinancing Facility in accordance with its terms (including, without limitation, to give such Refinancing Facility the benefits of Section 2.05, as applicable).
(f)    Conflicting Provisions. This Section shall supersede any provisions in Section 2.13 to the contrary.
2.17    Cash Collateral.

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(a)    Sections 2.03, 2.05 and 8.02(c) set forth certain additional requirements to deliver Cash Collateral hereunder. For purposes of Sections 2.03, 2.05 and 8.02(c), “Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the L/C Issuers and the Incremental Revolving Lenders, as collateral for the L/C Obligations, cash or deposit account balances pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and the applicable L/C Issuer (which documents are hereby consented to by the Incremental Revolving Lenders) in an amount equal to 103% of such L/C Obligations. Derivatives of such term have corresponding meanings. The Borrower, and to the extent provided by any Incremental Revolving Lender, such Incremental Revolving Lender, hereby grants to the Administrative Agent, for the benefit of the L/C Issuers and the Incremental Revolving Lenders, a security interest in all such cash and such deposit account balances therein and all proceeds of the foregoing. Cash Collateral shall be maintained in blocked deposit accounts at the Administrative Agent or another institution reasonably acceptable to the Administrative Agent.
(b)    Notwithstanding anything to the contrary contained in this Agreement, (i) Cash Collateral or other credit support (and proceeds thereof) provided by any Defaulting Lender pursuant to Section 2.03 to support the obligations of such Lender in respect of Letters of Credit shall be held and applied, first, to fund the L/C Advances of such Lender or such Lender’s Applicable Percentage of Incremental Revolving Loans that are Base Rate Loans that are used to repay Unreimbursed Amounts or L/C Advances with respect to which such collateral or other credit support was provided, as applicable, and, second, to fund any interest accrued for the benefit of the applicable L/C Issuer pursuant to Section 2.03(c)(vi) allocable to such Lender, and (ii) Cash Collateral and other credit support (and proceeds thereof) otherwise provided by or on behalf of any Loan Party under Sections 2.03, 2.05(c) or 8.02(c) to support L/C Obligations shall be held and applied, first, to the satisfaction of the specific L/C Obligations or obligations to fund participations therein of the applicable Defaulting Lender for which the Cash Collateral or other credit support was so provided and, second, if remedies under Section 8.02 shall have been exercised, to the application of such collateral or other credit support (or proceeds thereof) to any other Secured Obligations in accordance with Section 8.04.
(c)    Cash Collateral and other credit support (or a portion thereof as provided in clause (2) below) provided under Section 2.03 in connection with any Lender’s status as a Defaulting Lender shall be released to the Person that provided such collateral or other credit support (except as the applicable L/C Issuer and the Person providing such collateral or other credit support may agree otherwise (as applicable)) promptly following the earlier to occur of (A) the termination of such Lender’s status as a Defaulting Lender or (B) the applicable L/C Issuer’s good faith determination, (1) in the case of such Cash Collateral or other credit support provided by or on behalf a Defaulting Lender, that there remain outstanding no L/C Obligations as to which it has actual or potential fronting exposure in relation to such Lender as to which it desires to maintain Cash Collateral or other credit support and (2) in the case of such Cash Collateral or other credit support provided by or on behalf of a Loan Party, that the outstanding L/C Obligations as to which it has actual or potential fronting exposure in relation to such Lender are less than the value of such Cash Collateral or other credit support provided (such release to be provided upon reasonable request from the Borrower to the Administrative Agent and only to the extent of the excess amount of Cash Collateral or other credit support provided); subject, however, to the additional condition that, as to any such collateral or other credit support

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provided by or on behalf of a Loan Party, no Default or Event of Default shall then have occurred and be continuing.
2.18    Defaulting Lenders. Notwithstanding anything contained in this Agreement to the contrary, 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)    Reallocation of Loan Payments. Any payment or prepayment (i) of any portion of the principal amount of Loans of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) shall be applied, first, to the Loans of other Incremental Revolving Lenders as if such Defaulting Lender had no Loans outstanding, until such time as the Outstanding Amount of Incremental Revolving Loans of each Lender shall equal its pro rata share thereof based on its Applicable Percentage (without giving effect to Section 2.18(c)), ratably to the Lenders in accordance with their Applicable Percentages of Loans being repaid or prepaid, second, to the then outstanding amounts (including interest thereon) owed under the terms hereof by such Defaulting Lender to the Administrative Agent or (to the extent the Administrative Agent has received notice thereof) to any other Lender, ratably to the Persons entitled thereto, third, to the posting of Cash Collateral in respect of its Applicable Percentage of L/C Obligations, ratably to the L/C Issuers in accordance with their respective applicable fronting exposure, and fourth, the balance, if any, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction, and (ii) of any other amounts thereafter received by the Administrative Agent for the account of such Defaulting Lender (including amounts made available to the Administrative Agent by such Defaulting Lender pursuant to Section 10.08) to have been paid to such Defaulting Lender and applied on behalf of such Defaulting Lender, first, to the liabilities above referred to in item second of clause (i) above, second, to the matters above referred to in item third of clause (i) above, and third, the balance, if any, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction. Any of such amounts as are reallocated pursuant to this Section 2.18(a) that are payable or paid (including pursuant to Section 10.08) to such Defaulting Lender shall be deemed paid to such Defaulting Lender and applied by the Administrative Agent on behalf of such Defaulting Lender, and each Lender hereby irrevocably consents thereto.
(b)    Certain Fees. Such Defaulting Lender (i) shall not be entitled to receive any commitment fee on the unused portion of its Commitment pursuant to Section 2.09(a) for any period during which such Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to such Defaulting Lender in respect of its unused Commitment) and (ii) shall not be entitled to receive any Letter of Credit Fees pursuant to Section 2.03(i) for any period during which such Lender is a Defaulting Lender (and, unless required by the following sentence, the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to such Defaulting Lender). If any Defaulting Lender’s L/C Obligations are neither cash collateralized nor reallocated pursuant to this Section 2.18, then, without prejudice to any rights or remedies of the L/C Issuer or any Lender hereunder, all fees payable to such Defaulting Lender under Section 2.03 shall be payable to the L/C Issuer until such L/C Obligations are Cash Collateralized or reallocated.

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(c)    Reallocation of Applicable Percentages to Reduce Fronting Exposure. During any period in which there is a Defaulting Lender, for purposes of computing the amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit pursuant to Section 2.03, the “Applicable Percentage” of each non-Defaulting Lender shall be computed without giving effect to the Commitment of such Defaulting Lender in either the numerator or the denominator; provided, that, in all cases, the obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit shall not exceed the positive difference, if any, between (1) the Commitment of such non-Defaulting Lender and (2) the aggregate Outstanding Amount of the Incremental Revolving Loans of such Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all other L/C Obligations (prior to giving effect to such reallocation). For avoidance of doubt, this Section 2.18(c) will operate for the benefit of the L/C Issuer notwithstanding the fact that a Letter of Credit is issued at the time that one or more Defaulting Lenders exist hereunder (regardless of whether the L/C Issuer has notice thereof). Notwithstanding any provision contained herein to the contrary, during any period in which a Default or Event of Default has occurred and is continuing the provisions of this Section 2.18(c) shall not apply.
A Lender that has become a Defaulting Lender because of an event referenced in the definition of Defaulting Lender may cure such status and shall no longer constitute a Defaulting Lender as a result of such event when (i) such Defaulting Lender shall have fully funded or paid, as applicable, all Loans, participations in respect of Letters of Credit or other amounts required to be funded or paid by it hereunder as to which it is delinquent (together, in each case, with such interest thereon as shall be required to any Person as otherwise provided in this Agreement), (ii) the Administrative Agent and each of the Borrower shall have received a certification by such Defaulting Lender of its ability and intent to comply with the provisions of this Agreement going forward, and (iii) each of (w) the Administrative Agent, (x) any L/C Issuer and any other Lender as to which a delinquent obligation was owed and (y) the Borrower, shall have determined (and notified the Administrative Agent) that they are satisfied, in their sole discretion, that such Defaulting Lender intends to continue to perform its obligations as a Lender hereunder and has all approvals required to enable it, to continue to perform its obligations as a Lender hereunder. No reference in this subsection to an event being “cured” shall by itself preclude any claim by any Person against any Lender that becomes a Defaulting Lender for such damages as may otherwise be available to such Person arising from any failure to fund or pay any amount when due hereunder or from any other event that gave rise to such Lender’s status as a Defaulting Lender.
2.19    Dutch Auction Repurchases.
(a)    Notwithstanding anything to the contrary contained in this Agreement, the Borrower and its Subsidiaries may at any time and from time to time purchase Term Loans, Incremental Term Loans and Refinancing Term Loans by conducting modified Dutch auctions (each, an “Auction”) (each Auction to be managed exclusively by the Administrative Agent or another investment bank of recognized standing elected by the Borrower following consultation with the Administrative Agent in accordance with the Auction Procedures (in such capacity, the “Auction Manager”)), so long as the following conditions are satisfied:

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(i)    no Default or Event of Default shall have occurred and be continuing at the time of the purchase of any Term Loans, Incremental Term Loans and Refinancing Term Loans in connection with any Auction;
(ii)    the minimum principal amount (calculated on the face amount thereof) of all Term Loans, Incremental Term Loans and Refinancing Term Loans that the Borrower purchases in any such Auction shall be no less than $1,000,000 and whole increments of $500,000 in excess thereof (unless another amount is agreed to by the Administrative Agent and Auction Manager);
(iii)    the aggregate principal amount (calculated on the face amount thereof) of all Term Loans, Incremental Term Loans and Refinancing Term Loans so purchased by the Borrower or its Subsidiaries shall immediately and automatically be cancelled and retired by them on the settlement date of the relevant purchase (and may not be resold);
(iv)    the Borrower will promptly advise the Administrative Agent of the total amount of all Term Loans, Incremental Term Loans and Refinancing Term Loans so purchased by the Borrower or its Subsidiaries and the Administrative Agent is authorized to make appropriate entries in the Register to reflect such cancellation and retirement; and
(v)    no more than one Auction may be ongoing at any one time.; and
(vi)    no proceeds of Revolving Loans shall be utilized by the Borrower or any Subsidiary to purchase any Term Loans, Incremental Term Loans and Refinancing Term Loans.
(b)    The Borrower shall have no liability to any Lender for any termination of the respective Auction as a result of its failure to satisfy one or more of the conditions set forth above which are required to be met at the time which otherwise would have been the time of purchase of Term Loans, Incremental Term Loans or Refinancing Term Loans pursuant to the respective Auction, and any such failure shall not result in any Default hereunder. With respect to all purchases of Term Loans, Incremental Term Loans and Refinancing Term Loans made by the Borrower pursuant to this Section 2.19, (i) the Borrower shall pay on the settlement date of each such purchase all accrued and unpaid interest (except to the extent otherwise set forth in the relevant offering documents), if any, on the purchased Term Loans, Incremental Term Loans and Refinancing Term Loans up to the settlement date of such purchase and (ii) such purchases (and the payments made by the Borrower or its Subsidiaries and the cancellation of the purchased Term Loans, Incremental Term Loans or Refinancing Loans, in each case, in connection therewith) shall not constitute voluntary or mandatory payments or prepayments for purposes of Sections 2.05 or 2.07.
(c)    The Administrative Agent and the Lenders hereby consent to the Auctions and the other transactions contemplated by this Section 2.19 (provided that no Lender shall have an obligation to participate in any such Auctions) and hereby waive the requirements of any provision of this Agreement (including, without limitation, Sections 2.05, 2.07, 2.12, 2.13 and 10.06, it being understood and acknowledged that purchases of the Term Loans, Incremental Term Loans and Refinancing Term Loans by the Borrower or its Subsidiaries contemplated by

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this Section 2.19 shall not constitute Investments by the Borrower) that may otherwise prohibit any Auction or any other transaction contemplated by this Section 2.19. The Auction Manager acting in its capacity as such hereunder shall be entitled to the benefits of the provisions of Article IX and Section 10.04 mutatis mutandis as if each reference therein to the “Administrative Agent” were a reference to the Auction Manager, and the Administrative Agent shall cooperate with the Auction Manager as reasonably requested by the Auction Manager in order to enable it to perform its responsibilities and duties in connection with each Auction.
2.20    Open Market Repurchases.
(a)    Notwithstanding anything to the contrary contained in this Agreement, the Borrower and its Subsidiaries may at any time and from time to time make open market purchases of Term Loans, Incremental Term Loans and Refinancing Term Loans (each, an “Open Market Purchase”), so long as no Default or Event of Default shall have occurred and be continuing on the time of such Open Market Purchase; provided that no proceeds of Revolving Loans shall be utilized by the Borrower or any Subsidiary to purchase any Term Loans, Incremental Term Loans and Refinancing Term Loans.
(b)    The aggregate principal amount (calculated on the face amount thereof) of all Term Loans, Incremental Term Loans and Refinancing Term Loans so purchased by the Borrower or its Subsidiaries shall immediately and automatically be cancelled and retired by them on the settlement date of the relevant purchase (and may not be resold).
(c)    The Borrower will promptly advise the Administrative Agent of the total amount of all Term Loans, Incremental Term Loans and Refinancing Term Loans so purchased by the Borrower or its Subsidiaries and the Administrative Agent is authorized to make appropriate entries in the Register to reflect such cancellation and retirement.
(d)    With respect to all purchases of Term Loans, Incremental Term Loans and Refinancing Term Loans made by the Borrower pursuant to this Section 2.20, (i) the Borrower or its Subsidiaries shall pay on the settlement date of each such purchase all accrued and unpaid interest, if any, on the purchased Term Loans, Incremental Term Loans and Refinancing Term Loans up to the settlement date of such purchase (except to the extent otherwise set forth in the relevant purchase document as agreed by the respective selling Lender) and (ii) such purchases (after the payments made by the Borrower or its Subsidiaries and the cancellation of the purchased Term Loans, Incremental Term Loans and Refinancing Term Loans, in each case in connection therewith) shall not constitute voluntary or mandatory payments or prepayments for purposes of Sections 2.05 or 2.07.
(e)    The Administrative Agent and the Lenders hereby consent to the Open Market Purchases contemplated by this Section 2.20 and hereby waive the requirements of any provision of this Agreement (including, without limitation, Sections 2.05, 2.07, 2.12, 2.13 and 10.06, it being understood and acknowledged that purchases of the Term Loans, Incremental Term Loans and Refinancing Term Loans by the Borrower or its Subsidiaries contemplated by this Section 2.20 shall not constitute Investments by the Borrower or its Subsidiaries) that may otherwise prohibit any Open Market Purchase by this Section 2.20.

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ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01    Taxes.
(a)    Payments Free of Taxes. Any and all payments by or on behalf 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 Taxes, except as required by applicable law. If any applicable law (as determined in the good faith of the applicable withholding agent) requires the deduction or withholding of any Tax from any such payment by a withholding agent, then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 3.01(a)) the Administrative Agent, Lender or L/C Issuer, as the case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made.
(b)    Payment of Other Taxes by the Borrower. Without duplication of any obligation set forth in subsection (a) above, the Loan Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of any Other Taxes.
(c)    Indemnification by the Borrower. The Loan Parties shall jointly and severally indemnify the Administrative Agent, each Lender and each L/C Issuer within 10 days after demand therefor for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by, or required to be withheld or deducted from a payment to, the Administrative Agent, such Lender or such L/C Issuer, as the case may be, on or with respect to any payment made by or on account of any obligation of the Loan Parties under 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 the Borrower by a Lender or an L/C Issuer (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or an L/C Issuer, shall be conclusive absent manifest error.
(d)    Evidence of Payments. As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 3.01, the applicable Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(e)    Status of Lenders. Any Lender that is entitled to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Loan Document shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable law and from time to time when reasonably requested by the Borrower

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or the Administrative Agent, such properly completed and executed documentation prescribed by applicable law or 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 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.
Each Lender that is not a Foreign Lender shall deliver to the Borrower and Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter as prescribed by applicable law or upon the reasonable request of the Borrower or Administrative Agent), two duly completed and executed copies of IRS Form W-9.
Without limiting the generality of the foregoing, each Foreign Lender holding any Loan to the Borrower shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative Agent, but only if such Foreign Lender is legally entitled to do so), two copies of whichever of the following is applicable or any subsequent version thereof or successor thereto:
(i)    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, duly completed and executed copies of IRS Form W-8BEN or IRS W-8BEN-E, as applicable, 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 IRS W-8BEN-E, as applicable, 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,
(ii)    duly completed and executed copies of IRS Form W-8ECI,
(iii)    in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit M-1 to the effect that such Foreign Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) duly completed and executed copies of IRS Form W-8BEN or W-8BEN-E, as applicable,
(iv)    to the extent a Foreign Lender is not the beneficial owner, duly completed and executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate substantially in the form of Exhibit M-2 or Exhibit M-3, IRS Form W-9, and/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

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interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit M-4 on behalf of each such direct and indirect partner, and
(v)    duly completed and executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States Federal withholding tax duly completed and executed together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or Administrative Agent to determine the withholding or deduction required to be made; provided, that notwithstanding anything to the contrary in this Section 3.01(e), the completion, execution and submission of the documentation described in this clause (v) 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.
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 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 as 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 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 the purposes of this paragraph, “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 Borrower and the Administrative Agent in writing of its legal inability to do so.
Notwithstanding the foregoing, no Lender nor any Participant shall be required to deliver any form or other document under this Section 3.01(e) that it is not legally entitled to deliver.
(f)    Treatment of Certain Refunds. If the Administrative Agent, any Lender or any L/C Issuer receives a refund with respect to Taxes to which it has been indemnified pursuant to this Section 3.01 (including by the payment of additional amounts pursuant to this Section 3.01), which in the reasonable discretion and good faith judgment of such Administrative Agent, Lender or L/C Issuer is allocable to such payment, it shall promptly pay such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Administrative Agent, Lender or L/C Issuer incurred in obtaining such refund and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, however, that the Borrower agrees to promptly return such amount, net of any incremental additional costs (plus any penalties, interest or other charges imposed by the relevant

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Governmental Authority), to the applicable Administrative Agent, Lender or L/C Issuer, as the case may be, if it receives notice from the applicable Administrative Agent, Lender or L/C Issuer that such Administrative Agent, Lender or L/C Issuer is required to repay such refund to the relevant Governmental Authority. Notwithstanding anything to the contrary in this paragraph (f), in no event will the Administrative Agent, any Lender or L/C Issuer be required to pay any amount to the Borrower pursuant to this paragraph (f) the payment of which would place the Administrative Agent, any Lender or L/C Issuer 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 subsection shall not be construed to require the Administrative Agent, any Lender or L/C Issuer to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the Borrower or any other Person.
(g)    Survival. Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
3.02    Illegality. If any Lender determines that as a result of any Change in Law it becomes unlawful, or that any Governmental Authority asserts that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Eurocurrency Rate Loans, or to determine or charge interest rates based upon the Eurocurrency Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the applicable interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, (a) any obligation of such Lender to make or continue Eurocurrency Rate Loans or to convert Base Rate Loan to Eurocurrency Rate Loans, shall be suspended and (b) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurocurrency Rate component of the Base Rate, the interest rate on Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurocurrency Rate component of the Base Rate, in each case, until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (i) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or convert all such Eurocurrency Rate Loans of such Lender to Base Rate Loans (the interest rate on Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurocurrency Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurocurrency Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurocurrency Rate Loans and (ii) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurocurrency Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurocurrency Rate component thereof until the Administrative Agent is advised in writing by such Lender, which it shall do as promptly as possible, that it is no longer illegal for such Lender to determine or charge

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interest rates based upon the Eurocurrency Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
3.03    Inability to Determine Rates.
If the Required Lenders determine that for any reason in connection with any request for a Eurocurrency Rate Loan or a conversion to or continuation thereof that (ai) adequate and reasonable means do not exist for determining the Eurocurrency Rate (including because the Eurocurrency Rate is not available or published on a current basis) for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan, or (bii) the Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Eurocurrency Rate Loan, the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (i) the obligation of the Lenders to make or maintain Eurocurrency Rate Loans in the affected currency or currencies shall be suspended and (ii) in the event of a determination described in the preceding sentence with respect to the Eurocurrency Rate component of the Base Rate, the utilization of the Eurocurrency Rate component in determining the Base Rate shall be suspended, in each case, until the Administrative Agent (upon the instruction of the Required Lenders, who agree to so instruct the Administrative Agent once the circumstances giving rise to the inability ability to determine rates no longer exist) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurocurrency Rate Loans or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein.
3.04    Increased Costs; Reserves on Eurocurrency Rate Loans.
(a)    Increased Costs Generally. If any Change in Law shall:
(i)    impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the Eurocurrency Rate contemplated by Section 3.04(e));
(ii)    subject any Lender, any L/C Issuer or the Administrative Agent to any Taxes (other than Indemnified Taxes or Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii)    impose on any Lender or any L/C Issuer or the London interbank market any other condition, cost or expense affecting this Agreement or Eurocurrency Rate Loans made by such Lender or any Letter of Credit or participation therein (other than Taxes addressed by Section 3.01 and Excluded Taxes);
and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Eurocurrency Rate Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or such L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any

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Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon written request of such Lender or L/C Issuer setting forth in reasonable detail such increased costs, the Borrower will pay to such Lender or L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered; provided that before making any such demand, each Lender agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and so long as such efforts would not be materially disadvantageous to it, in its reasonable discretion, in any legal, economic or regulatory manner) to designate a different Eurocurrency lending office if the making of such designation would allow the Lender or its Eurocurrency lending office to continue to perform its obligation to make Eurocurrency Rate Loans or to continue to fund or maintain Eurocurrency Rate Loans and avoid the need for, or reduce the amount of, such increased cost.
(b)    Capital Requirements. If any Lender or any L/C Issuer reasonably determines that any Change in Law affecting such Lender or L/C Issuer or any Lending Office of such Lender or such Lender’s or L/C Issuer’s holding company, if any, regarding capital or liquidity requirements has the effect of reducing the rate of return on such Lender’s or L/C Issuer’s capital or on the capital of such Lender’s or L/C Issuer’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such L/C Issuer, to a level below that which such Lender or L/C Issuer or such Lender’s or L/C Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or L/C Issuer’s policies and the policies of such Lender’s or L/C Issuer’s holding company with respect to capital adequacy), then from time to time, after submission to the Borrower (with a copy to the Administrative Agent) of a written request therefor setting forth in reasonable detail the change and the calculation of such reduced rate of return, the Borrower will pay to such Lender or L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or L/C Issuer or such Lender’s or L/C Issuer’s holding company for any such reduction suffered.
(c)    Certificates for Reimbursement. A certificate of a Lender or L/C Issuer setting forth the amount or amounts necessary to compensate such Lender or L/C Issuer or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section, describing the basis therefor and showing the calculation thereof in reasonable detail, and delivered to the Borrower shall be conclusive, absent manifest error. The Borrower shall pay such Lender or L/C Issuer, as the case may be, the amount shown as due on any such certificate within 30 days after receipt thereof.
(d)    Delay in Requests. Failure or delay on the part of any Lender or any L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender’s or L/C Issuer’s right to demand such compensation, provided that the Borrower shall not be required to compensate a Lender or an L/C Issuer pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than 90 days prior to the date that such Lender or L/C Issuer, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or L/C Issuer’s intention to claim compensation therefor (except that, if the Change in

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Law giving rise to such increased costs or reductions is retroactive, then the 90-day period referred to above shall be extended to include the period of retroactive effect thereof).
(e)    Additional Reserve Requirements. The Borrower shall pay to each Lender, (i) as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”), additional interest on the unpaid principal amount of each Eurocurrency Rate Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as reasonably determined by such Lender in good faith, which determination shall be conclusive, absent manifest error), and (ii) as long as such Lender shall be required to comply with any reserve ratio requirement or analogous requirement of any other central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the Eurocurrency Rate Loans, such additional costs (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual costs allocated to such Commitment or Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive, absent manifest error), which in each case shall be due and payable on each date on which interest is payable on such Loan, provided the Borrower shall have received at least 10 Business Days’ prior notice (with a copy to the Administrative Agent) of such additional interest or costs from such Lender describing the basis therefor and showing the calculation thereof, in each case, in reasonable detail. If a Lender fails to give notice 10 Business Days prior to the relevant Interest Payment Date, such additional interest or costs shall be due and payable within 30 days from receipt of such notice.
(f)    Certain Rules Relating to the Payment of Additional Amounts. If any Lender requests compensation pursuant to this Section 3.04, or the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, such Lender shall either (A) forego payment of such additional amount from the Borrower or (B) reasonably afford the Borrower the opportunity to contest, and reasonably cooperate with the Borrower in contesting, the imposition of any Indemnified Taxes or other amounts giving rise to such payment; provided that the Borrower shall reimburse such Lender for its reasonable and documented out-of-pocket costs, including reasonable and documented attorneys’ and accountants’ fees and disbursements incurred in so cooperating with the Borrower in contesting the imposition of such Indemnified Taxes or other amounts.
3.05    Compensation for Losses. Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
(a)    any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
(b)    any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by the Borrower;

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(c)    any failure by the Borrower to make payment of any drawing under any Letter of Credit (or interest due thereon) denominated in an Alternative Currency or its scheduled due date or any payment thereof in a different currency; or
(d)    any assignment of a Eurocurrency Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrower pursuant to Section 10.13;
including any foreign exchange losses and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan, from fees payable to terminate the deposits from which such funds were obtained or from the performance of any foreign exchange contract, but excluding any loss of anticipated profits. The Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each Eurocurrency Rate Loan made by it at the Eurocurrency Rate used in determining the Eurocurrency Rate for such Loan by a matching deposit or other borrowing in the offshore interbank market for such currency for a comparable amount and for a comparable period, whether or not such Eurocurrency Rate Loan was in fact so funded.
3.06    Mitigation Obligations; Replacement of Lenders.
(a)    Designation of a Different Lending Office. If any Lender requests compensation under Section 3.04, or the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then such Lender shall (i) use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (A) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (B) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender and (ii) promptly inform the Borrower and Administrative Agent when the circumstances giving rise to the applicability of such Sections no longer exists. The Borrower hereby agrees to pay all reasonable and documented costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b)    Replacement of Lenders. If any Lender requests compensation under Section 3.04, if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, if any Lender gives a notice pursuant to Section 3.02 or if any Lender is at such time a Defaulting Lender, then the Borrower may replace such Lender in accordance with Section 10.13.
3.07    Survival. The parties’ obligations under this Article III shall survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder.

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ARTICLE IV.
CONDITIONS PRECEDENT
4.01    Closing Date. The effectiveness of this Agreementthe Seventh Amendment is subject to satisfaction of the following conditions precedent:
(a)    The Administrative Agent’s receipt of the following, each of which shall be (w) originals, telecopies or electronic copies (followed promptly by originals), (x) properly executed by a duly authorized officer of the signing Loan Party, if and as applicable, (y) dated on or before the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and (z) in form and substance reasonably satisfactory to the Administrative Agent and, in the case of Security Documents, the Collateral Trustee:
(i)    executed counterparts of (a) this Agreement from the parties hereto, (b) the Guaranty from each of the Loan Parties, and (c) the Collateral Trust Agreement from the Borrower, each of the Guarantors, the Administrative Agent, the Priority Lien Notes Trustee, the Collateral Trustee, the Junior Collateral Trustee and the other parties thereto;
(ii)    Notes executed by the Borrower in favor of each Lender requesting Notes;
(iii)    the Gibraltar Pledge Agreement, duly executed by each party thereto, together with:
(1)    to the extent that any Capital Stock pledged pursuant to the Gibraltar Pledge Agreement is certificated and required to be delivered thereunder, the original share certificates for such Capital Stock accompanied by undated share transfer forms or other approved or instruments of transfer executed in blank,
(2)    financing statements in form appropriate for filing in the Office of Recorder of Deeds in the District of Columbia with respect to the Gibraltar Pledge Agreement in order to perfect the Liens created under the Gibraltar Pledge Agreement,
(3)    results of recent lien searches (or their equivalent under the Laws of Gibraltar) with respect to Gibraltar Holdings in the jurisdiction in which such Person is organized and the District of Columbia;
(4)    an irrevocable proxy and power of attorney in favor of the Collateral Trustee and granted pursuant to the Gibraltar Pledge Agreement; and
(5)    any documents that are required to be delivered under the Gibraltar Pledge Agreement.
(iv)    such certificates of resolutions or other action, incumbency certificates and/or other certificates of duly authorized officers of each Loan Party and each Restricted Subsidiary party to a Loan Document, in each case, as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each officer of each Loan Party or Restricted Subsidiary executing the Loan Documents to which each Loan Party or Restricted Subsidiary is a party;

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(v)    such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vi)    the executed opinion of Jones Day, counsel to the Borrower and special New York counsel to the other Loan Parties, addressed to the Administrative Agent, the Collateral Trustee and each Lender, as to the matters set forth in Exhibit H-1;
(vii)    [reserved];
(viii)    the executed opinion of Triay Stagnetto Neish, special Gibraltar counsel to the Loan Parties, addressed to the Administrative Agent, the Collateral Trustee and each Lender, as to the matters set forth in Exhibit H-2;
(ix)    the executed opinion of Bingham Greenebaum Doll LLP, special Indiana counsel to the Loan Parties, addressed to the Administrative Agent, the Collateral Trustee and each Lender, as to the matters set forth in Exhibit H-3;
(x)    [reserved];
(xi)     a certificate of a Responsible Officer either (A) attaching copies of all material consents, licenses and approvals required in connection with the execution, delivery and performance by each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect or (B) stating that no such consents, licenses or approvals are so required;
(xii)    (i) the Audited Financial Statements, (ii) unaudited consolidated financial statements (each of which shall have undergone a SAS 100 review) for each of the first three fiscal quarters of the fiscal year ending December 31, 2016 (and the corresponding period of the preceding fiscal year) prepared in accordance with GAAP, (iii) an unaudited pro forma consolidated balance sheet and income statement of the Borrower as of December 31, 2016 and for the four-quarter period then ended, giving effect to the effectiveness of the Plan of Reorganization and the Transactions (including the adoption of fresh-start accounting) as if the effectiveness of the Plan of Reorganization and the Transactions had occurred as of such date (in the case of the balance sheet) or at the beginning of such period (in the case of the income statements), in the case of each of clauses (i) through (iii), meeting the requirements of Regulation S-X under the Securities Act of 1933 (as amended) and (iv) financial projections (including the assumption on which such projections are based) for fiscal years 2017 through 2021;
(xiii)    a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d), (j), (l) (solely with respect to clauses (a) and (e) thereof) and (m) and 4.02(a) and (b) have been satisfied, and (B) that there has not occurred since December 31, 2016, any Closing Date Material Adverse Effect;

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(xiv)    a solvency certificate from the chief financial officer of the Borrower in the form of Exhibit K, which demonstrates that the Borrower and its Restricted Subsidiaries on a consolidated basis, are, and after giving effect to the Transactions and the other transactions contemplated hereby, will be, Solvent.
(b)    [Reserved].
(c)    (i) Not less than 15 business days prior to the Closing Date, the Borrower shall have obtained (a) a public corporate credit rating from Moody’s, (b) a private indicative corporate credit rating from S&P, (c) a public credit rating for the Term Loans and the Priority Lien Notes from Moody’s and (d) a private indicative credit rating for the Term Loans and the Priority Lien Notes from S&P; and (ii) on or prior to the Closing Date, the Borrower shall have obtained public corporate credit ratings or public credit ratings, as applicable, from S&P consistent with the ratings obtained in the foregoing clause (i).
(d)    The Borrower and its Restricted Subsidiaries shall have complied in all material respects with all state and federal regulations regarding bonding requirements.
(e)    The Arrangers shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to any material claim settlement, including but not limited to, any allowance of or settlement related to the MEPP Claim, above the amounts held in reserve by the Borrower and its Restricted Subsidiaries as of January 11, 2017.
(f)    The Bankruptcy Court shall have entered an order approving the Backstop Commitment Agreement and such order shall not have been stayed and shall be in full force and effect on the Closing Date, and the Backstop Commitment Agreement shall remain in full force and effect and shall not have been modified or amended in any manner that adversely affects the rights and interest of the Arrangers or the Lenders.
(g)    Administrative Agent shall have received a certificate from the applicable Loan Party’s insurance broker or other evidence satisfactory to it that all insurance required to be maintained pursuant to Section 6.07 is in full force and effect, together with endorsements naming Collateral Trustee, for the benefit of Secured Parties, as additional insured and loss payee thereunder to the extent required under Section 6.07.
(h)    In order to create in favor of Collateral Trustee, for the benefit of Secured Parties, a valid, perfected First Priority security interest in the Collateral (subject to the limitations set forth in the Security Documents), each Loan Party shall have delivered to Collateral Trustee:
(i) executed counterparts of the Security Agreement;
(ii) except to the extent set forth on Schedule 6.18 or otherwise not required as of the Closing Date pursuant to the terms of the Security Agreement, evidence reasonably satisfactory to Administrative Agent of the compliance by each Loan Party of their obligations under the Security Agreement and the other Security Documents (including their obligations to execute or authorize, as applicable, and deliver UCC financing statements (including, without limitation, as-extracted financing

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statements), originals of securities, instruments and chattel paper and any agreements governing deposit and/or securities accounts as provided therein);
(iii) a completed Collateral Questionnaire dated the Closing Date and executed by a Responsible Officer of each Loan Party, together with all attachments contemplated thereby;
(iv) fully executed IP Security Agreements, in proper form for filing or recording in the United States Patent and Trademark Office and the United States Copyright Office, as applicable, memorializing and recording the encumbrance of the Intellectual Property listed in Schedule 6 to the Security Agreement; and
(v) except to the extent set forth on Schedule 6.18 or otherwise not required as of the Closing Date pursuant to the terms of the Security Agreement, evidence that each Loan Party shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including the PIC Intercompany Note and any other intercompany notes evidencing Indebtedness permitted to be incurred pursuant to Section 7.03) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by the Administrative Agent.
(i)    Any fees required to be paid on or before the Closing Date to the Agents, the Arrangers or the Lenders under this Agreement, the Fee Letters or otherwise in connection with the Facilities shall have been paid and, unless waived by the Agents, the Arrangers or the Lenders, as applicable, to the extent invoiced at least three Business Days prior to the Closing Date, the Borrower shall have paid all reasonable and documented costs and expenses of the Agents, Arrangers and the Lenders (including the reasonable and documented fees and expenses of counsel to the Agents and the Lenders, plus such additional amounts of such reasonable and documented fees and expenses (including filing fees in respect of collateral) as shall constitute its reasonable estimate of such fees and expenses incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Agents)).
(j)    There shall not exist any action, suit, investigation, litigation, proceeding or hearing, pending or threatened in any court or before any arbitrator or Governmental Authority that affects the Financing Transactions or otherwise impairs the ability of the Loan Parties to consummate the Transactions (other than the Bankruptcy Cases) and no preliminary or permanent injunction or order by a state or federal court shall have been entered, in each case that would be material and adverse to the Arrangers, the Agents or the Lenders. All Governmental Authorities and Persons shall have approved or consented to the transactions contemplated hereby, to the extent required, and such approvals shall be in full force and effect.
(k)    The Arrangers and the Agents shall have received at least three business days prior to the Closing Date all documentation and other information required by regulatory authorities with respect to the Borrower and the other Loan Parties under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the

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PATRIOT Act, that has been requested by the Arrangers or the Agents at least ten Business Days prior to the Closing Date.
(l)    In connection with the Plan of Reorganization or the Plan Support Agreement and the transactions contemplated thereby: (a) any of the documents executed in connection with the implementation of the Plan of Reorganization or the Plan Support Agreement (collectively, the “Plan Documents”), to the extent they contain provisions differing in any material respect from, or not described in, the Plan of Reorganization or the Plan Support Agreement, that are material and adverse to the rights or interests of any or all of the Arrangers, the Administrative Agent and the Lenders (collectively, the “Finance Parties”) shall be in form and substance satisfactory to the Arrangers in their good faith judgment; (b) there shall have been no supplement, modification, waiver or amendment to the Plan of Reorganization or the Plan Support Agreement that, in the good faith judgment of the Arrangers, is material and adverse to the rights or interests of any or all of the Finance Parties or the creditworthiness of the Borrower unless, in each case, the Arrangers shall have reasonably consented thereto in writing; (c) unless the Arrangers shall have consented thereto in writing, the Authorization Order shall not have been vacated, stayed, reversed or modified or amended in any respect that adversely affects the rights or interests of any or all of the Finance Parties in any material respect as determined by the Arrangers in good faith; (d) unless the Arrangers shall have consented thereto in writing, each of the Confirmation Order and the order of the Bankruptcy Court approving the Plan Support Agreement shall have been entered and shall be in full force and effect and shall not have been vacated, stayed, reversed or modified or amended in any respect that adversely affects the rights or interests of any or all of the Finance Parties in any material respect as determined by the Arrangers in good faith; and (e) all conditions precedent to the effectiveness of the Plan of Reorganization, as it may be amended, supplemented, modified or waived in accordance with clause (b) above, other than the closing and funding of the Term Loans and the assumption by the Borrower of the obligations under the Priority Lien Notes, shall have occurred (or will occur substantially concurrently with the closing of the Term Loans and the assumption by the Borrower of the obligations under the Priority Lien Notes) or been waived (to the extent such waiver is material and adverse to the rights or interests of any or all of the Finance Parties, with the written consent of the Arrangers), including, but not limited to, the issuance of the Convertible Securities, the completion of the transactions contemplated by the Rights Offering Documents, the substantially simultaneous closing of each Permitted Securitization Program and the availability of the Minimum Cash Balance.
(m)    Substantially concurrently with the funding of the Term Loans on the Closing Date, of the Arrangers shall have received reasonably satisfactory evidence that all Indebtedness of the Borrower and its Subsidiaries (other than Indebtedness permitted under Section 7.03) shall have been extinguished, repaid or repurchased in full, all commitments relating thereto shall have been terminated, and all liens or security interests related thereto shall have been terminated or released, in each case to the extent set forth in or contemplated by the Plan of Reorganization (as the same may be amended, supplemented, modified or waived in accordance with Section 4.01(l) above) and the Loan Documents.
(n)    The Plan of Reorganization shall have become effective and all, or substantially all, assets of the Debtors shall have vested in the reorganized Debtors as provided therein, which

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shall have occurred no later than May 1, 2017 (as such date may be extended at the Borrower’s election, but subject to payment of the Ticking Fee, to no later than August 1, 2017).
Notwithstanding anything to the contrary in this Section 4.01, to the extent any security interest in any of the intended Collateral is not or cannot be provided and/or perfected on the Closing Date (other than any collateral the security interest in which may be perfected by the filing of a UCC financing statement, the delivery of certificated stock certificates of U.S. Subsidiaries (except as set forth on Schedule 6.18), or the filing of IP Security Agreements (except as set forth on Schedule 6.18)) after the Loan Parties’ use of commercially reasonable efforts to do so, then the provision and/or perfection of a security interest in such Collateral will not constitute a condition precedent to the obligation of each Lender to make a Borrowing on the Closing Date but such security interest(s) will be perfected as required by Section 6.18.
Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

4.02    Conditions to all Credit Extensions (Including on the ClosingSeventh Amendment Effective Date). The obligation of each Lender to honor any Request for Credit Extension (other than a Borrowing Notice requesting only a conversion of Loans to the other Type or a continuation of Eurocurrency Rate Loans) is subject to the following conditions precedent:
(a)    The representations and warranties of (i) the Borrower contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document required to be furnished at any time thereunder, shall be true and correct in all material respects on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, and except that for purposes of this Section 4.02 following the ClosingSeventh Amendment Effective Date, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality or by a reference to a Material Adverse Effect in the text thereof.
(b)    No Default or Event of Default shall exist, or would result immediately, from such proposed Credit Extension or the application of the proceeds thereof.
(c)    (i) The Administrative Agent and, if applicable, the applicable L/C Issuer, shall have received a Request for Credit Extension in accordance with the requirements hereof, and (ii) with respect to an L/C Credit Extension, the Administrative Agent shall have received a

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certificate from the Borrower certifying to compliance with the proviso to the first sentence of Section 2.03(a) after giving effect to such L/C Credit Extension.
(d)    In the case of an L/C Credit Extension to be denominated in an Alternative Currency, there shall not have occurred any Change in Law which in the reasonable opinion of the Administrative Agent or the applicable L/C Issuer would prohibit such Credit Extension to be denominated in the relevant Alternative Currency.
It is understood, for avoidance of doubt, that each Credit Extension made in connection with the effectiveness of any Incremental Facility, the proceeds of which are used to consummate a Permitted Acquisition, will be subject to the conditions set forth in clauses (a) and (b) only to the extent specified in Section 2.15(d)(i).
Each Request for Credit Extension (other than a Borrowing Notice requesting only a conversion of Loans to the other Type or a continuation of Eurocurrency Rate Loans) submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in Section 4.02(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent, the Collateral Trustee and the Lenders that:
5.01    Existence, Qualification and Power. Each of the Borrower and its Restricted Subsidiaries (a) (i) is duly organized or formed and validly existing and (ii) is in good standing under the Laws of the jurisdiction of its incorporation or organization, if such legal concept is applicable in such jurisdiction, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, and (c) is duly qualified, licensed, and in good standing (to the extent good standing is an applicable legal concept in the relevant jurisdiction), under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except in each case referred to in clauses (a)(ii), (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
5.02    Authorization; No Contravention. The execution, delivery and performance by each Loan Party and Gibraltar Holdings of each Loan Document to which such Person is a party, (a) have been duly authorized by all necessary corporate or other organizational action and (b) do not and will not (i) contravene the terms of any of such Person’s Organizational Documents; (ii) conflict with or result in any breach or contravention of, or the creation of, any Lien (except for any Liens that may arise under the Loan Documents) under, or require any payment to be made under (A) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (B) any order, injunction, writ or decree of any

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Governmental Authority to which such Person or its property is subject or (C) any arbitral award to which such Person or its property is subject; or (iii) violate any Law binding on such Loan PartyPerson, except in each case referred to in clauses (b)(ii) or (b)(iii) to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
5.03    Governmental Authorization. (a) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority and (b) no material approval, consent, exemption, authorization, or other action by, or notice to, or filing with any other Person, in each case, is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party or Gibraltar Holdings of this Agreement or any other Loan Document, except for those approvals, consents, exemptions, authorizations or other actions which have already been obtained, taken, given or made and are in full force and effect.
5.04    Binding Effect. This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party and Gibraltar Holdings, as applicable, that is party thereto. This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such Loan Party and Gibraltar Holdings, as applicable, enforceable against each Loan Party and Gibraltar Holdings, as applicable, that is party thereto in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other Laws relating to or affecting creditors' rights generally, general principles of equity, regardless of whether considered in a proceeding in equity or at law and an implied covenant of good faith and fair dealing.
5.05    Financial Statements; No Material Adverse Effect.
(a)    The Audited Financial Statements of the Borrower and its Subsidiaries (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein and (ii) fairly present in all material respects the financial condition of the Borrower and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein.
(b)    The unaudited consolidated balance sheet of the Borrower and its Subsidiaries dated March 31, 2016,2019 and June 30, 2016 and September 30, 20162019 and the related consolidated statements of income or operations, shareholders’ equity and cash flows for the fiscal quarters ended on such dates (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present in all material respects the financial condition of the Borrower and its Subsidiaries as of such dates and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end adjustments.

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(c)    Since the date of the last Audited Financial Statements, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.
(d)    The financial projections delivered pursuant to Section 4.01(a)(xiivii) were prepared in good faith on the basis of the assumptions stated therein, which assumptions were believed to be reasonable in light of the conditions existing at the time of delivery of such forecasts (it being understood that any such information is subject to significant uncertainties and contingencies, many of which are beyond the Borrower’s control, and that no assurance can be given that the future developments addressed in such information can be realized).
5.06    Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Borrower threatened, at law, in equity, by or before any Governmental Authority, by or against the Borrower or any of its Restricted Subsidiaries or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document, or any of the transactions contemplated hereby (other than the Bankruptcy Cases), or (b) except as specifically disclosed in public filings prior to the date hereof, as to which there is a reasonable possibility of an adverse determination and that could reasonably be expected to have a Material Adverse Effect.
5.07    No Default. None of the Borrower or any of its Restricted Subsidiaries is in default under or with respect to any Contractual Obligation that could reasonably be expected to have a Material Adverse Effect. No Default or Event of Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.
5.08    Ownership and Identification of Property.
(a)    The Borrower and its Restricted Subsidiaries have good record and marketable title in fee simple to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business, except for such defects in title as could not reasonably be expected to have a Material Adverse Effect. As of the ClosingSeventh Amendment Effective Date, with respect to all real property listed on Schedule 5.08(c): (i) the Borrower and its Restricted Subsidiaries possess all leasehold interests necessary for the operation of the Mines currently being operated by each of them and included or purported to be included in the Collateral pursuant to the Security Documents, except where the failure to possess such leasehold interests could not reasonably be expected to have a Material Adverse Effect, (ii) each of their respective rights under the leases, contracts, rights-of-way and easements necessary for the operation of such Mines are in full force and effect, except to the extent that failure to maintain such leases, contracts, rights of way and easements in full force and effect could not reasonably be expected to have a Material Adverse Effect; and (iii) each of the Borrower and its Restricted Subsidiaries possesses all licenses, permits or franchises which are necessary to carry out its business as presently conducted at any Mine included or purported to be included in the Collateral pursuant to the Security Documents, except where failure to possess such licenses, permits or franchises could not, in the aggregate, be reasonably expected to have a Material Adverse Effect.

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(b)    Schedule 5.08(b) lists completely and correctly as of the ClosingSeventh Amendment Effective Date all Material Real Property fee owned by the Borrower and the other Loan Parties.
(c)    Schedule 5.08(c) lists completely and correctly as of the ClosingSeventh Amendment Effective Date all Material Real Property leased by the Borrower and the other Loan Parties and the lessors thereof.
5.09    Environmental Compliance. Except as disclosed on Schedule 5.09 as of the Seventh Amendment Effective Date, or as otherwise could not reasonably be expected to have a Material Adverse Effect:
(a)    The facilities and properties currently or formerly owned, leased or operated by the Borrower, or any of its respective Restricted Subsidiaries (the “Properties”) do not contain any Hazardous Materials in amounts or concentrations which (i) constitute a violation of, or (ii) could reasonably be expected to give rise to liability under, any applicable Environmental Law.
(b)    None of the Borrower, nor any of its respective Restricted Subsidiaries has received any notice of violation, alleged violation, non-compliance, liability or potential liability regarding compliance with or liability under Environmental Laws with regard to any of the Properties or the business operated by the Borrower, or any of its Restricted Subsidiaries (the “Business”), or any prior business for which the Borrower has retained liability under any Environmental Law.
(c)    Hazardous Materials have not been transported or disposed of from the Properties in violation of, or in a manner or to a location which could reasonably be expected to give rise to liability under, any applicable Environmental Law, nor have any Hazardous Materials been generated, treated, stored or disposed of at, or under any of the Properties in violation of, or in a manner that could reasonably be expected to give rise to liability under, any applicable Environmental Law.
(d)    No judicial proceeding or governmental or administrative action is pending or, to the knowledge of the Borrower, threatened under any Environmental Law to which the Borrower, or any of its Restricted Subsidiaries is or, to the knowledge of the Borrower, will be named as a party or with respect to the Properties or the Business, nor are there any consent decrees or other decrees, consent orders, administrative orders or other orders, or other similar administrative or judicial requirements outstanding under any Environmental Law with respect to the Properties or the Business.
(e)    There has been no release or threat of release of Hazardous Materials at or from the Properties, or arising from or related to the operations of the Borrower, or any of its Restricted Subsidiaries in connection with the Properties or otherwise in connection with the Business, in violation of or in amounts or in a manner that could reasonably be expected to give rise to liability under any applicable Environmental Laws.
(f)    The Properties and all operations at the Properties are in compliance with all applicable Environmental Laws.

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(g)    The Borrower, and each of its Restricted Subsidiaries has obtained, and is in compliance with, all Environmental Permits required for the conduct of its businesses and operations, and the ownership, occupation, operation and use of its Property, and all such Environmental Permits are in full force and effect.
5.10    Insurance.
(a)    The properties of the Borrower and its Restricted Subsidiaries are insured with financially sound and reputable insurance companies which may be Affiliates of the Borrower, in such amounts (after giving effect to any self-insurance compatible with the following standards), with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Borrower or the applicable Restricted Subsidiary operates.
(b)    As to any Building located on Material Real Property and constituting Collateral, all flood hazard insurance policies required hereunder have been obtained and remain in full force and effect, and the premiums thereon have been paid in full.
5.11    Taxes. The Borrower and its Restricted Subsidiaries have filed all applicable US Federal, state, foreign and other material tax returns and reports required to be filed, and have paid all US Federal, state, foreign and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable except (a) those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP, or (b) where failure to do any of the foregoing could not reasonably be expected to result in a Material Adverse Effect or (c) to the extent excused or prohibited by the Bankruptcy Code or the Bankruptcy Court; no material tax Lien has been filed which would not be permitted under Section 7.01 and, to the knowledge of the Borrower, no material claim is being asserted, with respect to any material tax, fee or other charge which could reasonably be expected to result in a Material Adverse Effect.
5.12    ERISA Compliance. Except as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect:
(a)    Each Plan is in material compliance in all respects with the applicable provisions of ERISA, the Code and other Federal or state Laws (except that with respect to any Multiemployer Plan which is a Plan, such representation is deemed made only to the knowledge of the Borrower), and each Foreign Plan is in material compliance in all respects with the applicable provisions of Laws applicable to such Foreign Plan.
(b)    There has been no nonexemptnon-exempt “prohibited transaction” (as defineddescribed in Section 406 of ERISA or Section 4975 of the Code) or violation of the fiduciary responsibility rules with respect to any Plan.
(c)    (i) As of the Closing Date, noNo ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability; and (iii) neither the Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or 4212(c) of ERISA.

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5.13    Subsidiaries. As of the ClosingSeventh Amendment Effective Date, the Borrower has no Subsidiaries other than those specifically disclosed in Schedule 5.13.
5.14    Margin Regulations; Investment Company Act.
(a)    The Borrower is not engaged and will not engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock.
(b)    None of the Borrower, any Person Controlling the Borrower, nor any Restricted Subsidiary is or is required to be registered as an “investment company” under the Investment Company Act of 1940.
5.15    Disclosure. (a) No report, financial statement, certificate or other information furnished in writing by any Loan Party or Gibraltar Holdings to the Administrative Agent, the Collateral Trustee or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document, taken as whole with any other information furnished or publicly available, contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not materially misleading as of the date when made or delivered; provided that, with respect to any forecast, projection or other statement regarding future performance, future financial results or other future developments, the Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time of delivery of such information (it being understood that any such information is subject to significant uncertainties and contingencies, many of which are beyond the Borrower’s control, and that no assurance can be given that the future developments addressed in such information can be realized).
(b)    As of the Seventh Amendment Effective Date, to the best knowledge of the Borrower, the information included in the Beneficial Ownership Certification provided on or prior to the Seventh Amendment Effective Date (if any) to any Lender in connection with this Agreement is true and correct in all respects.
5.16    Compliance with Laws. The Borrower and each Restricted Subsidiary is in compliance in all material respects with the requirements of all Laws (including any zoning, building, ordinance, code or approval or any building or mining permits and all orders, writs, injunctions and decrees applicable to it or to its properties), except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.
5.17    Anti-Corruption; Sanctions; Terrorism Laws.
(a)    None of the Borrower, any Restricted Subsidiary nor, to the knowledge of the Borrower, any director, officer, agent, employee or Affiliate of the Borrower or any Restricted Subsidiary is (i) a person on the list of “Specially Designated Nationals and Blocked Persons” or

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(ii) subject of any active sanctions administered or enforced by the U.S. Department of State or the U.S. Department of Treasury (including the Office of Foreign Assets Control) or any other applicable governmental authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Laws”); and the Borrower will not directly or, to the knowledge of the Borrower, indirectly use the proceeds of the Loans for the purpose of financing the activities of any Person that is the subject of, or in any country or territory that at such time is the subject of, any Sanctions.
(b)    The Borrower and each Restricted Subsidiary is in compliance, in all material respects, with the (i) Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, (ii) the USA PATRIOT Act (Title III of Pub. L. 107-56), as amended (the “PATRIOT Act”), (iii) Sanctions Laws and (iv) Anti-Corruption Laws.
(c)    No part of the proceeds of any Loan will be used, directly or, to the knowledge of the Borrower, indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations and orders (collectively, “Anti-Corruption Laws”).
5.18    Intellectual Property; Licenses, Etc. The Borrower and its Restricted Subsidiaries own, or possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights (collectively, “IP Rights”) that are reasonably necessary for the operation of their respective businesses, except where the failure to own or possess the right to use such IP Rights could not reasonably be expected to have a Material Adverse Effect. To the best knowledge of the Borrower, the use of such IP Rights by the Borrower or any Restricted Subsidiary does not infringe upon any rights held by any other Person except for any infringement that could not reasonably be expected to have a Material Adverse Effect. Except as specifically disclosed in Schedule 5.18 as of the Seventh Amendment Effective Date, no claim or litigation regarding any of the foregoing is pending or, to the best knowledge of the Borrower, threatened, which could reasonably be expected to have a Material Adverse Effect.
5.19    Security Documents.
(a)    (i) Each Security Document (other than each Mortgage), when executed and delivered, is effective to create in favor of the Collateral Trustee (for the benefit of the Secured Parties), a legal, valid and enforceable security interest in the Collateral described therein and the Collateral Trustee has been authorized (and is hereby authorized) to make all filings of UCC-1 and as-extracted collateral financing statements in the appropriate filing office necessary or desirable to fully perfect the Collateral Trustee’s security interest in such Collateral described therein which can be perfected by filing a UCC-1 financing statement in the appropriate filing office, or in the case of the Gibraltar Pledge Agreement, by registering the Gibraltar Pledge

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Agreement at Companies House Gibraltar within 30 days following the Closing Date, and (ii) with respect to the security interest created in the Collateral pursuant to each Security Document (other than each Mortgage), upon such filings (or, with respect to possessory Collateral, upon the taking of possession by the Collateral Trustee (or by the ABL Agent as bailee for the Collateral Trustee pursuant to the ABL Intercreditor Agreement, if applicable) of any such Collateral which may be perfected by possession), such security interests will constitute perfected First Priority Liens on, and security interests in, all right, title and interest of the debtor party thereto in the Collateral described therein that can be perfected by filing a UCC-1 or as-extracted financing statement, as applicable, in the appropriate filing office or by delivery, in the case of possessory Collateral.
(b)    Each of the Mortgages, when executed and delivered, will be effective to create in favor of the Collateral Trustee, for the ratable benefit of the Secured Parties, a legal, valid and enforceable lien on the Material Real Property described therein and such security interests will constitute, upon such Mortgage being and recorded in the appropriate filing offices, First Priority liens on such Material Real Property.
5.20    Mines(a)    . Schedule 5.20 sets forth a complete and accurate list of all Mines (including addresses and the owner thereof) owned or operated by the Borrower or any of its Restricted Subsidiaries as of the ClosingSeventh Amendment Effective Date and included or purported to be included in the Collateral pursuant to the Security Documents.
5.21    Solvency. The Borrower and its Restricted Subsidiaries are and, upon the incurrence of any Obligation by any Loan Party on any date on which this representation and warranty is made, will be, on a consolidated basis, Solvent.
5.22    Labor Relations. Neither the Borrower nor any of its Restricted Subsidiaries is engaged in any unfair labor practice that could reasonably be expected to have a Material Adverse Effect. There is (a) no unfair labor practice complaint pending against the Borrower or any of its Restricted Subsidiaries, or to the best knowledge of the Borrower, threatened against any of them before the National Labor Relations Board and no grievance or arbitration proceeding arising out of or under any collective bargaining agreement that is so pending against the Borrower or any of its Restricted Subsidiaries or to the best knowledge of the Borrower, threatened against any of them, (b) no strike or work stoppage in existence or threatened involving the Borrower or any of its Restricted Subsidiaries, and (c) to the best knowledge of the Borrower, no union representation question existing with respect to the employees of the Borrower or any of its Restricted Subsidiaries and, to the best knowledge of the Borrower, no union organization activity that is taking place, except (with respect to any matter specified in clause (a), (b) or (c) above, either individually or in the aggregate) such as is not reasonably likely to have a Material Adverse Effect.
ARTICLE VI.
AFFIRMATIVE COVENANTS
Until Payment in Full, the Borrower shall, and shall cause each of its respective Restricted Subsidiaries to:

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6.01    Financial Statements. Deliver to the Administrative Agent and each Lender, in form and detail reasonably satisfactory to the Administrative Agent:
(a)    as soon as available, but in any event within 90 days after the end of each fiscal year of the Borrower (commencing with the fiscal year ended December 31, 2017) a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, changes in shareholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP; such consolidated statements shall be audited and accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit (other than with respect to or resulting from the upcoming maturity of any Loans under this Agreement, the Priority Lien Notes Documents, or any documents evidencing a Permitted Securitization Program or the ABL Credit Documents, occurring within one year from the time such opinion is delivered); and
(b)    as soon as available, but in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower (commencing with the fiscal quarter ended June 30, 2017), a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of income or operations, changes in shareholders’ equity and cash flows for such fiscal quarter and for the portion of the Borrower’s fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail; such consolidated statements shall be certified by a Responsible Officer of the Borrower as fairly presenting in all material respects the financial condition, results of operations, changes in shareholders’ equity and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes.
6.02    Certificates; Other Information. Deliver to the Administrative Agent, in form and detail reasonably satisfactory to the Administrative Agent:
(a)    concurrently with the delivery of the financial statements referred to in Section 6.01(a), a certificate of its independent certified public accountants reporting on such financial statements stating that in performing their audit nothing came to their attention that caused them to believe the Borrower failed to comply with the financial covenant set forth in Section 7.11, except as specified in such certificate;
(b)    concurrently with the delivery of the financial statements referred to in Section 6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal quarter ended June 30, 2017), (i) a duly completed Compliance Certificate signed by a Responsible Officer of the Borrower and (ii) a reconciliation of such financial statements for the Borrower and its Restricted Subsidiaries; provided, that, for the avoidance of doubt, any such reconciliation of the financial statements referred to in Section 6.01(a) shall not be audited;

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(c)    promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the Borrower, and copies of all annual, regular, periodic and special reports and registration statements which the Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d)    promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request; and
(e)    not later than 60 days after the end of each fiscal year of the Borrower, a copy of summary projections by the Borrower of the operating budget and cash flow budget of the Borrower and its Subsidiaries for the succeeding fiscal year, such projections to be accompanied by a certificate of a Responsible Officer to the effect that such projections have been prepared based on assumptions believed by the Borrower to be reasonable (it being understood that any such information is subject to significant uncertainties and contingencies, many of which are beyond the Borrower’s control, and that no assurance can be given that the future developments addressed in such information can be realized).
Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 10.02; (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); or (iii) on which such documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval system.
The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a “Public Lender”). The Borrower hereby agrees that so long as the Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (a) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (b) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers, the L/C Issuer and the Lenders to treat the Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent the Borrower Materials constitute Information, they shall

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be treated as set forth in Section 10.07); and (c) all Borrower Materials marked “PUBLIC” or not marked as containing material non-public information are permitted to be made available through a portion of the Platform designated “Public Investor.” Notwithstanding the foregoing, the Borrower shall not be under any obligation to mark the Borrower Materials “PUBLIC” or as containing material non-public information. In connection with the foregoing, each party hereto acknowledges and agrees that the foregoing provisions are not in derogation of their confidentiality obligations under Section 10.07.
6.03    Notices. Notify the Administrative Agent:
(a)    promptly, of the occurrence of any Default or Event of Default hereunder or the occurrence of any “Default” or “Event of Default” under the Priority Lien Notes Documents or the ABL Credit Documents;
(b)    promptly, of any event which could reasonably be expected to have a Material Adverse Effect;
(c)    of the occurrence of any ERISA Event that, individually or in the aggregate, would be reasonably likely to have a Material Adverse Effect, as soon as possible and in any event within 30 days after the Borrower knows or has obtained notice thereof;
(d)    within 15 days of the Borrower or any Guarantor (or Peabody Investments (Gibraltar) Limited) changing its legal name, jurisdiction of organization or the location of its chief executive office or sole place of business;
(e)    to the extent that there will be a cancellation or material reduction in amount or material change in coverage for any insurance maintained by the Borrower or any Guarantor, at least 10 days prior to such cancellation, reduction or change; and
(f)    promptly, as to any Building located on Material Real Property and constituting Collateral, any redesignation of any such property on which such Building is located into or out of a special flood hazard area.; and
(g)    any change in the information provided in the Beneficial Ownership Certification (if any) delivered to the Administrative Agent that would result in a change to the list of beneficial owners identified in such certification.
Each notice pursuant to clauses (a)-(c) of this Section shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action the Borrower has taken and proposes to take with respect thereto.
6.04    Payment of Tax Obligations. Except where failure to do so could not reasonably be expected to result in a Material Adverse Effect, with respect to the Borrower and each of its Restricted Subsidiaries, pay and discharge all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate

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reserves in accordance with GAAP are being maintained by the Borrower or such Restricted Subsidiary.
6.05    Preservation of Existence. Preserve, renew and maintain in full force and effect its legal existence except in a transaction permitted by SectionSections 7.04 or 7.18.
6.06    Maintenance of Properties. (a) Maintain, preserve and protect all of its material properties and material equipment, including Collateral, necessary in the operation of its business in good working order and condition (ordinary wear and tear and damage by fire or other casualty or taking by condemnation excepted), except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
(b)    Keep in full force and effect all of its material leases and other material contract rights, and all material rights of way, easements and privileges necessary or appropriate for the proper operation of the Mines being operated by the Borrower or a Restricted Subsidiary and included or purported to be included in the Collateral by the Security Documents, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
6.07    Maintenance of Insurance. (a) Maintain with financially sound and reputable insurance companies which may be Affiliates of the Borrower, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts (after giving effect to any self-insurance compatible with the following standards) as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Borrower or the applicable Restricted Subsidiary operates, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect.
(b)    With respect to any Building located on Material Real Property and constituting Collateral, the Borrower shall and shall cause each appropriate Loan Party to (i) maintain fully paid flood hazard insurance on any such Building that is located in a special flood hazard area, on such terms and in such amounts as required by The National Flood Insurance Reform Act of 1994 and (ii) furnish to the Administrative Agent an insurance certificate evidencing the renewal (and payment of renewal premiums therefor) of all such policies prior to the expiration or lapse thereof (or at such other time acceptable to the Administrative Agent). The Borrower shall cooperate with the Administrative Agent’s reasonable request for any information reasonably required by the Administrative Agent to comply with The National Flood Insurance Reform Act of 1994, as amended.
6.08    Compliance with Laws. Comply in all respects with the requirements of all Laws (including the PATRIOT Act, Sanctions Laws, the Anti-Corruption Laws and Environmental Laws) and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) such requirement of law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (or, in the case of

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compliance with the PATRIOT Act, Sanctions Laws and the Anti-Corruption Laws, the failure to comply therewith is not material).
6.09    Books and Records. (a) Maintain proper books of record and account, in which in all material respects full, true and correct entries in conformity with GAAP shall be made of all material financial transactions and matters involving the assets and business of the Borrower or such Restricted Subsidiary, as the case may be; and (b) maintain such books of record and account in material conformity with all material requirements of any Governmental Authority having regulatory jurisdiction over the Borrower or such Restricted Subsidiary, as the case may be.
6.10    Inspection Rights. Permit representatives and independent contractors of the Administrative Agent and each Lender to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom (except to the extent (a) any such access is restricted by a Requirement of Law or (b) any such agreements, contracts or the like are subject to a written confidentiality agreement with a non-Affiliate that prohibits the Borrower or any of its Subsidiaries from granting such access to the Administrative Agent or the Lenders; provided that, with respect to such confidentiality restrictions affecting the Borrower or any of its Restricted Subsidiaries, a Responsible Officer is made available to such Lender to discuss such confidential information to the extent permitted), and to discuss the business, finances and accounts with its officers and independent public accountants at such reasonable times during normal business hours and as often as may be reasonably desired, provided that the Administrative Agent or such Lender shall give the Borrower reasonable advance notice prior to any contact with such accountants and give the Borrower the opportunity to participate in such discussions, provided further that the costs of one such visit per calendar year (or an unlimited amount if an Event of Default has occurred and is continuing) for the Administrative Agent, the Lenders and their representatives as a group shall be the responsibility of the Borrower.
6.11    Use of Proceeds. Use the proceeds of (a) the Term Loan Facility made available on the Closing Date (i) on the Closing Date, to refinance indebtedness under the Existingthat certain Credit Agreement and to pay the Transaction Costs, (ii) after , dated September 24, 2013, by and among the Borrower, Citibank, N.A., as administrative agent, and the lenders party thereto (as amended by that certain Omnibus Amendment, dated as of February 5, 2015 and as otherwise amended, restated, supplemented or otherwise modified) and to pay fees and expenses in connection with the transactions consummated on the Closing Date, for ongoing working capital, capital expenditures and for other lawful corporate purposes of the Borrower and its Subsidiaries, including for acquisitions and (iii) to make distributions to certain holders of claims in accordance with the Plan of Reorganization, (b) the Additional Refinancing Term Loans (as defined in the First Amendment) made on the First Amendment Effective Date shall be used to prepay in full the principal amount of all Existing Term Loans (as defined in the First Amendment), other than the Exchanged Term Loans (as defined in the First Amendment), (c) the Additional Refinancing Term Loans (as defined in the Fourth Amendment) made on the Fourth Amendment Effective Date shall be used to prepay in full the principal amount of all Existing Term Loans (as defined in the Fourth Amendment), other than the Exchanged Term

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Loans (as defined in the Fourth Amendment) and (d) the Incremental Revolving Facilities for ongoing working capital, capital expenditures and for other lawful corporate purposes of the Borrower and its Subsidiaries, including for acquisitions, and for the issuance of Letters of Credit for the accounts of the Borrower or any of its Restricted Subsidiaries.
6.12    Additional Guarantors. As of the date the Compliance Certificate referred to in Section 6.02 is required to be delivered, notify the Administrative Agent of any Restricted Subsidiary that is not a Guarantor and, by virtue of the definition of Guarantor would be required to be a Guarantor. Within 30 days of such notification, the Borrower shall cause any such Restricted Subsidiary to become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty or such other document as the Administrative Agent shall deem appropriate for such purpose.
6.13    Unrestricted Subsidiaries. Subject to the exclusions in the proviso in the definition of “Unrestricted Subsidiary”, any Restricted Subsidiary may be designated as an Unrestricted Subsidiary and any Unrestricted Subsidiary may be designated as a Restricted Subsidiary upon delivery to the Administrative Agent of written notice from the Borrower; provided that (a) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing, (b) other than for purposes of designating a Restricted Subsidiary as an Unrestricted Subsidiary in connection with a Permitted Securitization Program, immediately after giving effect to such designation, on a Pro Forma Basis, the Total Leverage Ratio shall be equal to or less than 2.50:1.00, (c) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” for purposes of any of the Priority Lien Notes Documents, the ABL Credit Documents or any documents evidencing any Permitted Refinancing Indebtedness or any Subordinated Indebtedness and (d) each Restricted Subsidiary to be designated as an Unrestricted Subsidiary and its Subsidiaries has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness other than Non-Recourse Debt. The designation of any Restricted Subsidiary as an Unrestricted Subsidiary shall constitute an Investment under Section 7.02 by the Borrower therein at the date of designation in an amount equal to the net book value of the Borrower’s investment therein. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness or Liens of such Restricted Subsidiary existing at such time.
6.14    Preparation of Environmental Reports. If an Event of Default caused by reason of a breach under Sections 6.08 or 5.09 with respect to compliance with Environmental Laws shall have occurred and be continuing, at the reasonable request of the Required Lenders through the Administrative Agent, provide, in the case of the Borrower, to the Lenders within 60 days after such request, at the expense of the Borrower, an environmental or mining site assessment or audit report for the Properties which are the subject of such default prepared by an environmental or mining consulting firm reasonably acceptable to the Administrative Agent and indicating the presence or absence of Hazardous Materials and the estimated cost of any compliance or remedial action in connection with such Properties and the estimated cost of curing any violation or non-compliance of any Environmental Law.

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6.15    Certain Long Term Liabilities and Environmental Reserves. To the extent required by GAAP, maintain adequate reserves for (a) 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, (b) future costs associated with retiree and health care benefits, (c) future costs associated with reclamation of disturbed acreage, removal of facilities and other closing costs in connection with closing its mining operations and (d) future costs associated with other potential environmental liabilities.
6.16    Covenant to Give Security.
(a)    Personal Property including IP of New Guarantors. Concurrently with any Restricted Subsidiary becoming a Guarantor pursuant to Section 6.12 (or a later date to which the Administrative Agent agrees), cause any such Restricted Subsidiary to (i) duly execute and deliver to the Collateral Trustee counterparts to the Security Agreement or such other document as the Administrative Agent or the Collateral Trustee shall reasonably deem appropriate for such purpose, (ii) to the extent that any Capital Stock in, or owned by, such Restricted Subsidiary is required to be pledged pursuant to the Security Agreement or the Gibraltar Pledge Agreement, deliver stock certificates, if any, representing such Capital Stock accompanied by undated stock powers or instruments of transfer executed in blank, (iii) to the extent that any Intellectual Property (as defined in the Security Agreement) owned by a Loan Party is required to be pledged pursuant to the Security Agreement but has not been pledged, deliver any supplements to the IP Security Agreements reasonably requested by the Administrative Agent or the Collateral Trustee and (iv) comply with all other requirements of the Security Agreement with respect to the Collateral of such Guarantor.
(b)    Real Property of New Guarantors.
(i)    New Real Property Identification. With respect to any Restricted Subsidiary becoming a Guarantor pursuant to Section 6.12, concurrently with such Restricted Subsidiary becoming a Guarantor (or a later date to which the Administrative Agent agrees), furnish to the Administrative Agent a description of all Material Real Property fee owned or leased by such Restricted Subsidiary.
(ii)    Material Real Property Mortgages and Flood Insurance. With respect to any Restricted Subsidiary becoming a Guarantor pursuant to Section 6.12, within the latest of (x) 90 days of such Restricted Subsidiary becoming a Guarantor and (y) a later date to which the Administrative Agent agrees, cause such Restricted Subsidiary to deliver (A) executed counterparts of one or more Mortgages on its Material Real Property in a form appropriate for recording in the applicable recording office, (B) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Building located on such Material Real Property and constituting Collateral and, if any such Building is located in special flood hazard area, (1) a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Loan Party relating thereto and (2) evidence of applicable flood insurance as required by Section 6.07(b)(i) if such Material Real Property constitutes Collateral, (C) legal opinions from counsel in such jurisdiction as the Material Real Property is located, each in form and substance reasonably satisfactory to Administrative Agent or the Collateral Trustee, (D) to the extent required by the Administrative

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Agent, evidence of the filing of as-extracted UCC-1 financing statements in the appropriate jurisdiction and (E) payment by the Borrower of all mortgage recording taxes and related charges required for the recording of such Mortgages.
(iii)    Consents Related to Leaseholds Concerning Material Real Property. With respect to any leasehold interest of any Restricted Subsidiary becoming a Guarantor pursuant to Section 6.12 that would constitute Material Real Property but for the need to obtain the consent of another Person (other than the Borrower or any Controlled Subsidiary) in order to grant a security interest therein, use commercially reasonable efforts to obtain such consent for the later of (x)within the 120 day period commencing after such entity becomes a Guarantor and (y) 225 days after the Closing Date, provided that there shall be no requirement to pay any sums to the applicable lessor other than customary legal fees and administrative expenses (it is understood, for avoidance of doubt, that, without limiting the foregoing obligations of the Borrower set forth in this Section 6.16(b)(iii), any failure to grant a security interest in any such leasehold interest as a result of a failure to obtain a consent shall not be a Default hereunder, and, for avoidance of doubt, the Borrower and its Restricted Subsidiaries shall no longer be required to use commercially reasonable efforts to obtain any such consent after such above-mentioned time period to obtain a consent has elapsed); provided further, it is understood that no such actions under this Section 6.16(b)(iii) shall be required for any such Material Real Property leased by a Loan Party as of the Seventh Amendment Effective Date.
(c)    Personal Property (including IP) Acquired by Borrower or Guarantors. Within the applicable time period set forth in the Security Agreement, shall, in the case of the Borrower, or cause any such Restricted Subsidiary otherwise, (i) to the extent that any Capital Stock in, or owned by, a Loan Party or Gibraltar Holdings is required to be pledged pursuant to the Security Agreement or the Gibraltar Pledge Agreement but has not been pledged, deliver stock certificates, if any, representing such Capital Stock accompanied by undated stock powers or instruments of transfer executed in blank to the Collateral Trustee and execute and deliver to the Collateral Trustee supplements to the Security Agreement, the Gibraltar Pledge Agreement or such other document as the Administrative Agent shall reasonably deem appropriate to pledge any such Capital Stock, (ii) to the extent that any Intellectual Property (as defined in the Security Agreement) owned by a Loan Party is required to be pledged pursuant to the Security Agreement but has not been pledged, deliver any supplements to the IP Security Agreements reasonably requested by the Administrative Agent and (iii) to the extent that a Lien on any asset of a Loan Party is required to be perfected pursuant to the Security Agreement but has not been perfected, take such additional actions as may be required pursuant to the Security Agreement in order to perfect the Lien of the Collateral Trustee on such asset.
(d)    Real Property Acquired by Borrower and Guarantors.
(i)     New Real Property Identification. As of the date the Compliance Certificate referred to in Section 6.02 is required to be delivered (or a later date to which the Administrative Agent agrees), with respect to each Loan Party, notify the Administrative Agent the acquisition of any Material Real Property fee owned or leased by such Loan Party.
(ii)    Material Real Property Mortgages and Supplements. Within the latest of (x) 90 days of the notification provided pursuant to Section 6.16(d)(i) (or a later date to which

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the Administrative Agent agrees), (y) 90 days after the ClosingSeventh Amendment Effective Date and (z) a later date to which the Administrative Agent agrees, cause such Loan Party to deliver the materials set forth in Section 6.16(b)(ii) with respect any such newly acquired Material Real Property, unless, in the judgment of the Administrative Agent, delivery of such materials is unnecessary to ensure the Secured Parties benefit from a perfected First Priority security interest in such Material Real Property in favor of the Collateral Trustee and such flood insurance (it is understood that in lieu of any new Mortgage, mortgage supplements or any other security documents may be delivered if reasonably acceptable to the Administrative Agent).
(iii)    Consents Related to Leaseholds Concerning Material Real Property. With respect to the acquisition of any leasehold interest by any Restricted Subsidiary that would constitute Material Real Property but for the need to obtain the consent of another Person (other than the Borrower or any Controlled Subsidiary) in order to grant a security interest therein, use commercially reasonable efforts to obtain such consent for the later of (x)within the 120 day period commencing on the date of the notification provided pursuant to Section 6.16(d)(i)and (y) 225 days after the Closing Date,, provided that there shall be no requirement to pay any sums to the applicable lessor other than customary legal fees and administrative expenses (it is understood, for avoidance of doubt, that, without limiting the foregoing obligations of the Borrower set forth in this Section 6.16(d)(iii), any failure to grant a security interest in any such leasehold interest as a result of a failure to obtain a consent shall not be a Default hereunder, and, for avoidance of doubt, the Borrower and its Restricted Subsidiaries shall no longer be required to use commercially reasonable efforts to obtain any such consent after such above-mentioned time period to obtain a consent has elapsed); provided further, it is understood that no such actions under this Section 6.16(d)(iii) shall be required for any such Material Real Property leased by a Loan Party as of the Seventh Amendment Effective Date..
(e)    Further Assurances. Subject to any applicable limitation in any Security Documents, upon request of the Administrative Agent, at the expense of the Borrower, promptly execute and deliver any and all further instruments and documents and take all such other action as the Administrative Agent may deem necessary or desirable in obtaining the full benefits of, or (as applicable) in perfecting and preserving the Liens of, the Security Documents, including the filing of financing statements necessary or advisable in the opinion of the Administrative Agent or the Collateral Trustee to perfect any security interests created under the Security Documents. Notwithstanding anything herein or in any other Security Document to the contrary, Administrative Agent is hereby authorized to deliver additional directions in writing to the Collateral Trustee from time to time (it being agreed that each such direction shall constitute an Act of Required Secured Parties under the Collateral Trust Agreement, and, by its execution hereof, Lenders constituting Required Lenders shall be deemed to have provided written consent to each such direction) authorizing and directing the Collateral Trustee to execute additional Security Documents and amendments thereto (in each case, covering additional or new property or assets, as determined in the Administrative Agent’s sole discretion).
(f)    Collateral Principles. Notwithstanding anything to the contrary in any Loan Document, (i) except as contemplated by the Gibraltar Pledge Agreement or with respect to the pledge of intercompany loans (including the PIC Intercompany Note), no actions in any non-U.S. jurisdiction or required by the Requirement of Law of any non-U.S. jurisdiction shall be required in order to create any security interests in assets located or titled outside of the U.S. (it being

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understood that, except for the Gibraltar Pledge Agreement, there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction), (ii) the Administrative Agent in its discretion may grant extensions of time for the creation or perfection of security interests in, and Mortgages on, or taking other actions with respect to, particular assets where it reasonably determines in consultation with the Borrower, that the creation or perfection of security interests and Mortgages on, or taking other actions, cannot be accomplished without undue delay, burden or expense by the time or times at which it would otherwise be required by this Agreement or the Security Documents and (iii) any Liens required to be granted from time to time pursuant to Security Documents and this Agreement on assets of the Loan Parties or Gibraltar Holdings to secure to the Secured Obligations shall exclude the Excluded Assets.
(g)    Junior Lien Indebtedness Guarantees and Collateral. Without limitation of (and subject to) any provision in the Collateral Trust Agreement, if the Junior Collateral Trustee or any holder of Junior Lien Indebtedness receive any additional guaranty or any additional collateral in connection with the Junior Lien Indebtedness after the ClosingSeventh Amendment Effective Date, without limitation of any Event of Default that may arise as a result thereof, the Loan Parties shall, concurrently therewith, cause the same to be granted to the Administrative Agent or the Collateral Trustee, as applicable, for its own benefit and the benefit of the Secured Parties.
6.17    Maintenance of Ratings. Use commercially reasonable efforts to maintain (i) a public corporate family rating issued by Moody’s and a public corporate credit rating issued by S&P and (ii) a public credit rating from each of Moody’s and S&P with respect to the Term Loans.
6.18    Post Closing Covenants. Cause to be delivered or performed the documents and other agreements and actions set forth on Schedule 6.18 within the time frame specified on such Schedule 6.18.
6.19    ERISA. Except, in each case, to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect, comply with the provisions of ERISA, the Code, and other Laws applicable to the Plans.
ARTICLE VII.
NEGATIVE COVENANTS
Until Payment in Full, the Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly:
7.01    Liens. Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following:
(a)    Liens pursuant to any Loan Document;
(b)    Liens existing on the date hereofSeventh Amendment Effective Date and (other than any individual Lien that secures obligations of less than $2,000,000) set forth on Schedule

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7.01 and any renewals, extensions, modifications, restatements or replacements thereof, provided that (i) the property covered thereby is not changed, (ii) the amount secured or benefited thereby is not increased except with respect to any Permitted Refinancing Increase and (iii) any renewal, extension, modification, restatement or replacement of the obligations secured or benefited thereby is permitted by Section 7.03;
(c)    Liens for taxes not yet due or which are being contested in good faith and by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d)    landlord’s, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 60 days or which are being contested in good faith and by appropriate proceedings;
(e)    pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation and employee health and disability benefit legislations and deposits securing liability to insurance carriers under insurance or self-insurance arrangements;
(f)    (i) Liens (including deposits) to secure the performance of bids, trade contracts and leases (other than Indebtedness), reclamation bonds, insurance bonds, statutory obligations, surety and appeal bonds, performance bonds, bank guarantees and letters of credit and other obligations of a like nature incurred in the ordinary course of business, (ii) Liens on assets to secure obligations under surety bonds obtained as required in connection with the entering into of federal coal leases or (iii) Liens created under or by any turnover trust;
(g)    easements, rights-of-way, zoning restrictions, other restrictions and other similar encumbrances which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(h)    Liens securing attachments or judgments for the payment of money not constituting an Event of Default under Section 8.01(h) or securing appeal or surety bonds related to such attachments or judgments;
(i)    Liens securing Indebtedness of the Borrower and its Restricted Subsidiaries permitted by Section 7.03(k); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness, any other property which may be incorporated with or into that financed property or any after-acquired title in or on such property and proceeds of the existing collateral in accordance with the instrument creating such Lien, including replacement parts, accessories or enhancements that are affixed to any leased goods and (ii) the principal amount of Indebtedness secured by any such Lien shall at no time exceed 100% of the original purchase price of such property at the time it was acquired (it being understood that Liens of the type described in this subsection (i) incurred by a Restricted Subsidiary before such time as it became a Restricted Subsidiary are permitted under this subsection (i));
(j)    Liens on property or assets acquired in a transaction permitted by Section 7.02 or of a Person which becomes a Restricted Subsidiary after the date hereof; provided that (i) such

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Liens existed at the time such property or assets were acquired or such entity became a Subsidiary and were not created in anticipation thereof, (ii) such Liens do not extend to any other property or assets of such Person (other than the proceeds of the property or assets initially subject to such Lien) or of the Borrower or any Restricted Subsidiary and (iii) the amount of Indebtedness secured thereby is not increased;
(k)    Liens on the property of the Borrower or any of its Subsidiaries, as a tenant under a lease or sublease entered into in the ordinary course of business by such Person, in favor of the landlord under such lease or sublease, securing the tenant’s performance under such lease or sublease, as such Liens are provided to the landlord under applicable law and not waived by the landlord;
(l)    Liens (including those arising from precautionary UCC financing statement filings and those which are security interests for purposes of the Personal Property Securities Act of 2009 (Cth)) with respect to bailments, operating leases or consignment or retention of title arrangements entered into by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(m)    Liens securing Indebtedness permitted under Section 7.03(c), to the extent that the Indebtedness being refinanced was originally secured in accordance with this Section 7.01, provided that such Lien does not apply to any additional property or assets of the Borrower or any Restricted Subsidiary (other than property or assets within the scope of the original granting clause or the proceeds of the property or assets subject to such Lien);
(n)    Liens securing Indebtedness or other obligations of a non-Guarantor Restricted Subsidiary to the Borrower or a Guarantor;
(o)    leases, subleases, licenses and rights-of-use granted to others incurred in the ordinary course of business and that do not materially and adversely affect the use of the property encumbered thereby for its intended purpose;
(p)    (i) Liens in favor of a banking institution arising by operation of law or any contract encumbering deposits (including the right of set-off) held by such banking institutions incurred in the ordinary course of business and which are within the general parameters customary in the banking industry or (ii) contractual rights of setoff to the extent constituting Liens;
(q)    Liens on Capital Stock of any Unrestricted Subsidiary, solely to the extent such Capital Stock does not constitute Collateral;
(r)    Liens on Receivables Assets pursuant to any Permitted Securitization Programs or under any other agreement under which such receivables or rights are transferred in a manner permitted hereunder (to the extent, in each case, that any such Disposition of receivables is deemed to give rise to a Lien);
(s)    Liens in favor of an escrow agent arising under an escrow arrangement incurred in connection with the issuance of notes with respect to the proceeds of such notes and anticipated interest expenses with respect to such notes;

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(t)    Liens securing Incremental NotesEquivalent Debt, Refinancing NotesDebt or Permitted Refinancing Indebtedness of the foregoing; provided that (i) such Liens rank junior or pari passu with the Liens securing the Secured Obligations pursuant to the Security Documents, (ii) the rights of the holders of the Incremental NotesEquivalent Debt, Refinancing NotesDebt or such Permitted Refinancing Indebtedness are subject to the Collateral Trust Agreement with respect to such Liens, (iii) such Liens encumber only the assets, or a subset of the assets, that secure the Secured Obligations and (iv) for the avoidance of doubt, Liens shall only be permitted under this Section 7.01(t) to the extent that the Incremental NotesEquivalent Debt, Refinancing NotesDebt or Permitted Refinancing Indebtedness are permitted to be secured under Section 7.03;
(u)    Permitted Real Estate Encumbrances;
(v)    [reserved];
(w)    subject to the Collateral Trust Agreement, Liens on the Collateral in favor of the Collateral Trustee for the benefit of holders of Priority Lien Notes Indebtedness securing the Priority Lien Notes Indebtedness permitted pursuant to Section 7.03(o);
(x)    Liens on assets of Foreign Subsidiaries securing Indebtedness of Foreign Subsidiaries;
(y)    other Liens securing Indebtedness or obligations of the Loan Parties in an aggregate amount at any time outstanding not to exceed $75,000,000;
(z)    prior to the incurrence of any Incremental Revolving Commitments, Liens on assets securing any ABL Facility to the extent such Liens are subject to an ABL Intercreditor Agreement[reserved]; and
(aa)    (x) Production Payments, royalties, dedication of reserves under supply agreements or similar or related rights or interests granted, taken subject to, or otherwise imposed on properties or (y) cross charges, Liens or security arrangements entered into in respect of a Joint Venture for the benefit of a participant, manager or operator of such Joint Venture, in each case, consistent with normal practices in the mining industry.
7.02    Investments. Make any Investments, except:
(a)    Investments held by the Borrower or such Restricted Subsidiary in the form of cash or Cash Equivalents;
(b)    advances to officers, directors and employees of the Borrower and Subsidiaries in an aggregate amount not to exceed $5,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes;
(c)    Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;

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(d)    Investments (including debt obligations and Capital Stock) received in satisfaction of judgments or in connection with the bankruptcy or reorganization of suppliers and customers of the Borrower and its Restricted Subsidiaries and in settlement of delinquent obligations of, and other disputes with, such customers and suppliers arising in the ordinary course of business;
(e)    (i) Investments in the nature of Production Payments, royalties, dedication of reserves under supply agreements or similar or related rights or interests granted, taken subject to, or otherwise imposed on properties, (ii) cross charges, Liens or security arrangements entered into in respect of a Joint Venture for the benefit of a participant, manager or operator of such Joint Venture or (iii) payments or other arrangements whereby the Borrower or a Restricted Subsidiary provides a loan, advance payment or guarantee in return for future coal deliveries, in each case consistent with normal practices in the mining industry;
(f)    Investments in existence on the ClosingSeventh Amendment Effective Date and (other than individual Investments the amount of which is less than $2,000,000) listed on Schedule 7.02 and extensions, renewals, modifications, restatements or replacements thereof; provided that no such extension, renewal, modification, restatement or replacement shall increase the amount of such Investment except, in the case of a loan, by an amount equal to any Permitted Refinancing Increase;
(g)    (i) promissory notes and other similar non-cash consideration received by the Borrower and its Subsidiaries in connection with Dispositions not otherwise prohibited under this Agreement and (ii) Investments received in compromise or resolution of (A) obligations of trade creditors or customers that were incurred in the ordinary course of business of the Borrower and its Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer, (B) litigation, arbitration or other disputes or (C) the foreclosure with respect to any secured investment or other transfer of title with respect to any secured investment;
(h)    Investments in any assets constituting a business unit received by the Borrower or its Subsidiaries by virtue of a Permitted Asset Swap or acquired as a Capital Expenditure;
(i)    Hedging Agreements or Cash Management Obligations permitted under Section 7.03(e);
(j)    Investments consisting of purchases of the Priority Lien Notes to the extent not prohibited hereunder;
(k)    Investments by the Borrower or any Restricted Subsidiary in Restricted Subsidiaries, and Investments by any Restricted Subsidiary in the Borrower; provided that Investments by a Loan Party in Restricted Subsidiaries that are not Loan Parties, when aggregated with Indebtedness made by any Loan Party to a non-Loan Party Restricted Subsidiary pursuant to Section 7.03(f) (other than Pledged Intercompany Indebtedness subject to the second proviso of such Section) and Disqualified Equity Interests issued by a non-Partynon-Loan Party Restricted Subsidiary to a Loan Party pursuant to Section 7.03(f) and

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Investments made pursuant Section 7.02(n)(iii), shall not in the aggregate exceed the greater of $100,000,000 and 1.252.5% of Consolidated Net Tangible Assets;
(l)    Investments by the Borrower or any Restricted Subsidiary in Unrestricted Subsidiaries and Joint Ventures in an aggregate amount not to exceed the greater of $250,000,000 and 3.56.5% of Consolidated Net Tangible Assets;
(m)    additional Investments by the Borrower or any Restricted Subsidiary (i) in an aggregate amount not to exceed the greater of $100,000,000 and 1.252.5% of Consolidated Net Tangible Assets plus (ii) so long as no Event of Default is continuing immediately prior to making such Investment or would result therefrom, an amount equal to the Cumulative Amount;
(n)    any acquisition of all or substantially all the assets of, or all of the Equity Interests in, or merger, consolidation or amalgamation with, a Person or division or, line of business or product line of a Person if (i) no Event of Default is continuing immediately prior to making such Investment or would result therefrom, (ii) each applicable Loan Party and any such newly created or acquired Restricted Subsidiary shall, or will within the times specified therein, have complied with the applicable requirements of Section 6.16, if any, and (iii) in respect of an acquisition of targets that will not become Loan Parties or assets that will not be acquired by Loan Parties, the aggregate amount of such Investments, when taken together with Indebtedness of a non-Loan Party Restricted Subsidiary made by any Loan Party to a non-Loan Party pursuant to Section 7.03(f) (other than Pledged Intercompany Indebtedness subject to the second proviso of such Section) and Disqualified Equity Interests issued by a non-Partynon-Loan Party Restricted Subsidiary to a Loan Party pursuant to Section 7.03(f) and Investments by a Loan Party in non-Loan PartiesParty Restricted Subsidiaries made pursuant to Section 7.02(k), shall not in the aggregate exceed the greater of $100,000,000 and 1.252.5% of Consolidated Net Tangible Assets;
(o)    Investments acquired as a capital contribution to the Borrower, or made in exchange for, or out of the net cash proceeds of, a substantially concurrent offering of Qualified Equity Interests of the Borrower;
(p)    [reserved];Investments set forth on Schedule 1.01(f) made by the Borrower or a Restricted Subsidiary in connection with the PRB-CO Joint Venture Transaction.
(q)    (i) receivables owing to the Borrower or any Restricted Subsidiary if created or acquired in the ordinary course of business, (ii) endorsements for collection or deposit in the ordinary course of business and (iii) securities, instruments or other obligations received in compromise or settlement of debts created in the ordinary course of business, or by reason of a composition or readjustment of debts or reorganization of another Person, or in satisfaction of claims or judgments;
(r)    Investments made pursuant to surety bonds, reclamation bonds, performance bonds, bid bonds, appeal bonds and related letters of credit or similar obligations, in each case, to the extent such surety bonds, reclamation bonds, performance bonds, bid bonds, appeal bonds, related letters of credit and similar obligations are permitted under this Agreement;

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(s)    Investments consisting of indemnification obligations in respect of performance bonds, bid bonds, appeal bonds, surety bonds, reclamation bonds and completion guarantees and similar obligations under any Mining Law or Environmental Law or with respect to workers’ compensation benefits, in each case entered into in the ordinary course of business, and pledges or deposits made in the ordinary course of business in support of obligations under existing coal sales contracts (and extensions or renewals thereof on similar terms); and
(t)    Investments arising as a result of any Permitted Securitization Program.
7.03    Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a)    Indebtedness arising under the Loan Documents (including any Incremental Facility or Refinancing Facility);
(b)    Indebtedness outstanding on the date hereofSeventh Amendment Effective Date and (other than any individual obligation with respect to such Indebtedness that is less than $2,000,000) listed on Schedule 7.03;
(c)    any Permitted Refinancing Indebtedness of Indebtedness permitted under Section 7.03(b) or of Indebtedness subsequently incurred under this Section 7.03(c);
(d)    Guarantees of the Borrower or any Restricted Subsidiary in respect of Indebtedness otherwise permitted hereunder of the Borrower or any such Restricted Subsidiary;
(e)    Indebtedness in respect of (i) Cash Management Obligations incurred in the ordinary course of business and (ii) Hedging Agreements incurred in the ordinary course of business, consistent with prudent business practice;
(f)    (i) Indebtedness of the Borrower and any Restricted Subsidiary to any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower and (ii) Disqualified Equity Interests of a Restricted Subsidiary issued to the Borrower or another Restricted Subsidiary; provided that, (a) any such Indebtedness extended by any Loan Party or any non-Loan Party to a Loan Party must be subordinated to the Secured Obligations on customary terms and (b) Indebtedness made by any Loan Party toof a non-Loan Party Restricted Subsidiary made by a Loan Party pursuant to this Section 7.03(f) and any Disqualified Equity Interests of a non-Loan Party Restricted Subsidiary issued to a Loan Party, together with Investments by a Loan Party in non-Loan PartiesParty Restricted Subsidiaries made pursuant to Section 7.02(k) and Investments made pursuant to Section 7.02(n)(iii), shall not in the aggregate exceed the greater of $100,000,000 and 1.252.5% of Consolidated Net Tangible Assets; provided further, that notwithstanding the foregoing, the Indebtedness extended pursuant to the PIC Intercompany Loan Agreement and any other Indebtedness extended by any Loan Party to any non-Loan Party Restricted Subsidiary shall be permitted (and shall not be subject to the cap in the immediately preceding proviso) so long as such Indebtedness is evidenced by a promissory note, in form and substance reasonably satisfactory to the Administrative Agent (it being acknowledged that the PIC Intercompany Note is satisfactory to the Administrative Agent), and such promissory note shall be pledged to the Collateral Trustee as Collateral (such debt, “Pledged Intercompany Indebtedness”);

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(g)    [reserved];
(h)    Guarantees by the Borrower or any Restricted Subsidiary of borrowings by current or former officers, managers, directors, employees or consultants in connection with the purchase of Equity Interests of the Borrower by any such person in an aggregate principal amount not to exceed $2,000,000 at any one time outstanding;
(i)    (i) Indebtedness incurred in connection with any Permitted Securitization Program or (ii) prior to the incurrence of any Incremental Revolving Commitments, Indebtedness incurred in connection with any ABL Facility to the extent such Indebtedness is subject to the ABL Intercreditor Agreement;
(j)    Indebtedness incurred or assumed in connection with Permitted Acquisitions and other permitted Investments consisting of the purchase of a business unit, line of business or a division of a Person or all or substantially all of the assets or all of the Capital Stock of another Person; provided that, after giving effect to the incurrence thereof on a Pro Forma Basis, (i) if such Indebtedness is (or is intended to be) secured by the Collateral on a pari passu basis, the First Lien Leverage Ratio is equal to or less than 1.75 to 1.00 and (ii) if such Indebtedness is secured by the Collateral on a junior-lien basis or unsecured, (a) the Total Leverage Ratio is equal to or less than 2.50 to 1.00 or (b) the Total Leverage Ratio is less than immediately prior to such incurrence; provided that Indebtedness incurred by any non-Loan Party pursuant to this Section 7.03(j) shall not in the aggregate exceed the greater of $100,000,000 and 1.252.5% of Consolidated Net Tangible Assets;
(k)    Indebtedness of the Borrower or any Restricted Subsidiary Incurred to finance the acquisition, construction or improvement of any assets, including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets before the acquisition thereof; provided that the aggregate principal amount at any time outstanding of any Indebtedness incurred pursuant to this clause, including all Permitted Refinancing Debt Incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause, may not exceed the greater of (a) $150 million150,000,000 or (b) 2.03.5% of Consolidated Net Tangible Assets; provided that such amount may be increased by the then-outstanding principal amount of any operating lease in existence on the ClosingSeventh Amendment Effective Date that is actually restructured to a Capital Lease after the ClosingSeventh Amendment Effective Date;
(l)    Indebtedness of non-Loan Party Restricted Subsidiaries in an aggregate amount not to exceed $75,000,000;
(m)    Indebtedness of Loan Parties constituting (A) unsecured senior or senior subordinated debt securities, (B) debt securities that are secured by a Lien ranking junior to the Liens securing the Secured Obligations or (C) debt securities that are secured by a Lien ranking pari passu with the Liens securing the Secured Obligations in an aggregate principal amount, which when all amounts under clauses (A), (B) and (C) above are added to the aggregate principal amount of all the other Incremental Debt outstanding does not exceed the Incremental Debt Cap (such Indebtedness, the “Incremental Notes”); provided that (1) with respect to Indebtedness of Loan Parties incurred under clause (m)(C) hereof, (x) the final stated maturity of

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such Indebtedness shall not be sooner than the Maturity Date , (y) the weighted average life to maturity of such Indebtedness is greater than or equal to the weighted average life to maturity of the Term Loans and any other Incremental Facilities and Refinancing Facilities, and (z) such Indebtedness shall not be subject to any mandatory prepayment, repurchase or redemption provisions, unless the prepayment, repurchase or redemption of such Indebtedness is accompanied by the prepayment of a pro rata portion of the outstanding principal of the Term Loans hereunder pursuant to Section 2.05 hereof, (2) with respect to Indebtedness of Loan Parties incurred under clause (m)(A) or (m)(B) hereof, (x) the final stated maturity of such Indebtedness shall not be sooner than 180 days after the Maturity Date , (y) the weighted average life to maturity of such Indebtedness is greater than the weighted average life to maturity of the Term Loans and any other Incremental Facilities and Refinancing Facilities and (z) such Indebtedness does not have scheduled amortization or payments of principal and shall not be subject to mandatory redemption, repurchase, prepayment or sinking fund obligations (other than pursuant to customary asset sale, event of loss, excess cash flow (provided that such excess cash flow sweep does not require the application of any excess cash flow that would otherwise be required to be applied to the prepayment of the Term Loans pursuant to Section 2.05(g) hereof), change of control prepayment provisions and a customary acceleration right after an event of default), in each case prior to the Maturity Date at the time such Indebtedness is incurred, (3) no Default or Event of Default shall have occurred or be continuing at the time of occurrence of such Indebtedness or would result therefrom, (4) to the extent secured, (x) such Indebtedness shall not be secured by a Lien on any asset of the Borrower and its Restricted Subsidiaries that does not also secure the Term Loan Facility and (y) such Indebtedness shall be subject to the Collateral Trust Agreement and (5) to the extent guaranteed, such Indebtedness shall not be guaranteed by a Restricted Subsidiary that is not a Guarantor of the Secured Obligations;
(n)    (i) Indebtedness of Loan Parties constituting (A) unsecured senior or senior subordinated debt securities, (B) debt securities that are secured by a Lien ranking junior to the Liens securing the Secured Obligations or (C) debt securities that are secured by a Lien ranking pari passu with the Liens securing the Secured Obligations in an aggregate principal amount, which Refinances some or all of the Term Loans incurred hereunder and has an aggregate principal amount which does not exceed the principal amount of the Term Loans hereunder which are being Refinanced except with respect to any Permitted Refinancing Increase (such Indebtedness, the “Refinancing NotesDebt”); provided that (1) with respect to Refinancing NotesDebt incurred under clause (n)(C) hereof, (x) the final stated maturity of such Refinancing NotesDebt shall not be sooner than the Maturity Date , (y) the weighted average life to maturity of such Refinancing NotesDebt is greater than or equal to the weighted average life to maturity of the Term Loans and any other Incremental Facilities and Refinancing Facilities, and (z) such Refinancing NotesDebt shall not be subject to any mandatory prepayment, repurchase or redemption provisions, unless the prepayment, repurchase or redemption of such Indebtedness is accompanied by the prepayment of a pro rata portion of the outstanding principal of the Term Loans hereunder pursuant to Section 2.05 hereof, (2) with respect to Refinancing NotesDebt incurred under clause (n)(A) or (n)(B) hereof, (x) the final stated maturity of such Refinancing NotesDebt shall not be sooner than 180 days after the Maturity Date , (y) the weighted average life to maturity of such Refinancing NotesDebt is greater than the weighted average life to maturity of the Term Loans and any other Incremental Facilities and Refinancing Facilities and (z) such Refinancing Notes doDebt does not have scheduled amortization or payments of principal and shall not be subject to mandatory redemption, repurchase, prepayment or sinking

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fund obligations (other than pursuant to customary asset sale, event of loss, excess cash flow (provided that such excess cash flow sweep does not require the application of any excess cash flow that would otherwise be required to be applied to the prepayment of the Term Loans pursuant to Section 2.05(g) hereof), change of control prepayment provisions and a customary acceleration right after an event of default), in each case prior to the Maturity Date at the time such Refinancing Notes areDebt is incurred, (3) no Default or Event of Default shall have occurred or be continuing at the time of occurrence of such Refinancing NotesDebt or would result therefrom, (4) to the extent secured, (x) such Indebtedness shall not be secured by a Lien on any asset of the Borrower and its Restricted Subsidiaries that does not also secure the Term Loan Facility and (y) such Indebtedness shall be subject to the Collateral Trust Agreement, and (5) to the extent guaranteed, such Indebtedness shall not be guaranteed by a Restricted Subsidiary that is not a Guarantor of the Secured Obligations;
(o)    Priority Lien Notes Indebtedness in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this Section 7.03(o), not to exceed $1,000,000,000 (plus any Permitted Refinancing Increase in respect thereof) at any one time outstanding; provided that (x) such Indebtedness shall not be secured by a Lien on any asset of the Borrower and its Restricted Subsidiaries that does not also secure the Term Loan Facility, (y) such Indebtedness shall be subject to the Collateral Trust Agreement and (z) such Indebtedness shall not be guaranteed by a Restricted Subsidiary that is not a Guarantor of the Secured Obligations;
(p)    [reserved];
(q)    additional Indebtedness of the Loan Parties in an amount not to exceed the greater of $150,000,000 and 2.03.5% of Consolidated Net Tangible Assets in the aggregate at any time outstanding;
(r)    Indebtedness of the Borrower or any Restricted Subsidiary in connection with one or more standby or trade-related letters of credit, performance bonds, bid bonds, appeal bonds, bankers acceptances, insurance obligations, reclamation obligations, bank guarantees, surety bonds, completion guarantees or other similar bonds and obligations, including self-bonding arrangements, issued by the Borrower or a Restricted Subsidiary, in each case, in the ordinary course of business or pursuant to self-insurance obligations and not in connection with the borrowing of money or the obtaining of advances;
(s)    Indebtedness arising from agreements of the Borrower or any Restricted Subsidiaries providing for indemnification, adjustment of purchase price, earnouts or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or any Subsidiary;
(t)    Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business;

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(u)    Indebtedness of the Borrower or any Restricted Subsidiary consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply or other arrangements; and
(v)    any transaction permitted under Section 7.16.
7.04    Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of the assets (whether now owned or hereafter acquired) of the Borrower and its Restricted Subsidiaries, taken as a whole, to or in favor of any Person, except that, if no Default exists or would immediately result therefrom:
(a)    any Subsidiary may merge or consolidate with (i) the Borrower, provided that the Borrower shall be the continuing or surviving Person or (ii) any one or more other Subsidiaries, provided that (A) when any wholly-owned Subsidiary is merging with another Subsidiary, the wholly-owned Subsidiary shall be the continuing or surviving Person, (B) when any Restricted Subsidiary is merging with any other Subsidiary, the continuing or surviving Person (unless such surviving Person could otherwise be designated an Unrestricted Subsidiary hereunder) shall be a Restricted Subsidiary, (C) when any Foreign Subsidiary is merging with any Domestic Subsidiary, the continuing or surviving Person shall be the Domestic Subsidiary and (D) when any Guarantor is merging with any other Subsidiary, the continuing or surviving Person shall be a Guarantor (and shall not be a Specified Subsidiary);
(b)    any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Subsidiary; provided that (i) if the transferor in such a transaction is a Restricted Subsidiary, then the transferee must either be the Borrower or another Restricted Subsidiary (unless such Disposition would otherwise be permitted as an Investment in an Unrestricted Subsidiary), (ii) if the transferor is a Domestic Subsidiary, then the transferee must either be the Borrower or another Domestic Subsidiary and (iii) if the transferor is a Guarantor, then the transferee must either be the Borrower or another Guarantor (and shall not be a Specified Subsidiary);
(c)    the Borrower and any Restricted Subsidiary may merge or consolidate with any other Person in a transaction in which the Borrower or the Restricted Subsidiary, as applicable, is the surviving or continuing Person; provided that, (i) the Borrower may not merge or consolidate with a Restricted Subsidiary unless the Borrower is the surviving or continuing Person and (ii) such merger or consolidation is permitted under Section 7.02(n) hereof; and
(d)    any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and not materially disadvantageous to the Lenders and the assets, if any, of any Restricted Subsidiary so liquidated or dissolved are transferred (x) to another Restricted Subsidiary or the Borrower and (y) to a Guarantor (that is not a Specified Subsidiary) or the Borrower if such liquidated or dissolved Restricted Subsidiary is a Guarantor.

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7.05    Dispositions. Make any Disposition or enter into any agreement to make any Disposition (other than Dispositions permitted pursuant to Sections 7.01, 7.04(a) - (d) and 7.06), except:
(a)    Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is no longer useful in its business (but excluding any real property);
(b)    (i) Dispositions of inventory, equipment or accounts receivable in the ordinary course of business and (ii) Dispositions of accounts receivable in connection with a factoring facility in an aggregate outstanding principal amount not to exceed $25,000,000 at any time entered into by a non-Guarantornon-Loan Party Restricted Subsidiary of the Borrower undertaken consistent with past practice or in the ordinary course of business;
(c)    Dispositions of the assets set forth on Schedule 7.05;
(d)    Dispositions of cash and Cash Equivalents pursuant to transactions permitted under this Agreement (including pursuant to Section 7.02) or otherwise in the ordinary course of business;
(e)    Dispositions of Receivables Assets pursuant to Permitted Securitization Programs;
(f)    (A) the sale of defaulted receivables in the ordinary course of business and not as part of a Permitted Securitization Program and (B) Dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceeding;
(g)    licensing, sublicensing and cross-licensing arrangements involving any technology or other intellectual property of the Borrower or any Restricted Subsidiary in the ordinary course of business or lapse or abandonment of intellectual property rights in the ordinary course of business that, in the reasonable judgment of the Borrower, is no longer useful in its business;
(h)    Permitted Asset Swaps;
(i)    (A) the grant in the ordinary course of business of any non-exclusive easements, permits, licenses, rights of way, surface leases or other surface rights or interests and (B) any lease, sublease or license of assets (with a Loan Partythe Borrower or a Restricted Subsidiary as the lessor, sublessor or licensor) in the ordinary course of business;
(j)    (i) transfers of condemned property as a result of the exercise of “eminent domain” or other similar policies or (ii) transfers of properties that have been subject to a casualty event or act of god;
(k)    if immediately after giving effect to such Disposition, (i) no Event of Default has occurred and is continuing, (ii) the consideration received for such Disposition shall be in an amount at least equal to the fair market value thereof as reasonably determined by the Borrower

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in good faith and (iii) at least 75% of the consideration for such Dispositions undertaken pursuant to this Section 7.05(k) shall be paid in cash or Cash Equivalents, provided that, for purposes of this provision, each of the following shall be deemed to be cash:
(A)    any securities, notes, other obligations or assets received by the Borrower or any Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof, to the extent of the cash or Cash Equivalents received in that conversion;
(B)    any liabilities of the Borrower or any Restricted Subsidiary (other than contingent liabilities) that are assumed by the transferee of any such assets and as a result of which the Borrower or such Restricted Subsidiary is released from further liability; and
(C)    any Designated Non-Cash Consideration received by the Borrower or any of its Restricted Subsidiaries in such Disposition; provided that the quantity equal to (1) the aggregate fair market value of such Designated Non-Cash Consideration, as reasonably determined by the Borrower in good faith, taken together with the fair market value at the time of receipt of all other Designated Non-Cash Consideration received pursuant to this clause (BC) minus (2) the amount of Net Proceeds previously realized in cash from prior Designated Non-Cash Consideration shall not exceed $25,000,000;
(l)    any Investment permitted pursuant to Sections 7.02(l) or, 7.02(m) or 7.02(p), which constitutes a Disposition;
(m)    Dispositions that do not constitute Asset Sales;
(n)    to the extent allowable under Section 1031 of the Code, or any comparable or successor provision, any like kind exchange of property for use in a Similar Business;
(o)    (i) any surrender or waiver of contractual rights or the settlement, release, or surrender of contractual rights or other litigation claims in the ordinary course of business or (ii) any settlement, discount, write off, forgiveness, or cancellation of any Indebtedness owing by any present or former directors, officers, or employees of the Borrower or` any Restricted Subsidiary or any of their successors or assigns;
(p)    the unwinding or termination of any Hedging Obligations or Cash Management Obligations; and
(q)    (q)    the sale of assets by the Borrower and its Restricted Subsidiaries consisting of Real Property solely to the extent that such Real Property is not necessary for the normal conduct of operations of the Borrower and its Restricted Subsidiaries.; and
(r)    Dispositions between a Loan Party and a non-Loan Party Restricted Subsidiary to the extent such Disposition would be permitted by Section 7.02(k).
7.06    Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment except that:

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(a)    (i) each Subsidiary may make Restricted Payments to the Borrower, the Subsidiaries and any other Person that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made or as otherwise required pursuant to its Organizational Documents and (ii) as of and following the ClosingSeventh Amendment Effective Date, (A) the Borrower and each Subsidiary may make payments and prepayments of principal or interest on account of intercompany Indebtedness owing to the Borrower or any other Loan Party and (B) each non-Loan Party Subsidiary may make payments and prepayments of principal or interest on account of intercompany Indebtedness owing to any non-Loan Party Subsidiary;
(b)    the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other Equity Interests of such Person or another Subsidiary;
(c)    the Borrower may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issuance of new shares of common stock or other Qualified Equity Interests of the Borrower;
(d)    the Borrower or any of its Subsidiaries may purchase (i) Equity Interests in any Loan Party or options with respect thereto held by directors, officers or employees of the Borrower or any Restricted Subsidiary (or their estates or authorized representatives) in connection with (A) the death, disability or termination of employment of any such director, officer or employee or (B) any benefit or incentive plans to provide funds for the payment of any Tax or other amounts owing by such directors, officers or employees upon vesting of the Equity Interests or options provided under such plans; and (ii) Equity Interests in any Loan Party for future issuance under any employee stock plan; provided that (a) no Event of Default has occurred and is continuing at the time of such purchase and (b) for both clauses (i) and (ii), the aggregate cash consideration paid therefor in any twelve-month period after the Closing Date shall not exceed $5,000,000 in the aggregate;
(e)    so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and its Subsidiaries may make Restricted Payments (i) after the Closing Date and prior to the First Amendment Effective Date in an amount not to exceed $50,000,000, and (ii) on or after the First Amendment Effective Date in an amount not to exceed (A) $50,000,000 plus (B) the Cumulative Amount; provided that, in the case of clause (B), the Total Leverage Ratio (calculated on a Pro Forma Basis) shall be less than or equal to 2.00:1.00 after giving effect to such Restricted Payment;
(f)    (i) the Borrower may make regularly scheduled payments of interest on any Junior Lien Indebtedness, (ii) the Borrower and any Subsidiary may make regularly scheduled payments of interest and principal at maturity of unsecured Indebtedness and (iii) the Borrower and any Subsidiary may redeem, repurchase or otherwise acquire or retire for value any unsecured Indebtedness in anticipation of satisfying a scheduled maturity, sinking fund or amortization installment obligation, in the case of this clause (iii), due within one year of the date of such redemption, repurchase, acquisition or retirement;

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(g)    the Borrower may make distributions, by dividend or otherwise, of shares of Capital Stock or Convertible Securities to holders of the Convertible Securities[reserved];
(h)    the repayment, redemption, repurchase, defeasance or other acquisition or retirement for value of unsecured Indebtedness, any Subordinated Indebtedness or any Junior Lien Indebtedness (i) with the net cash proceeds of, or in exchange for, Permitted Refinancing Indebtedness or (ii) in exchange for, or out of the proceeds of, a substantially concurrent issue of new shares of common stock or other Qualified Equity Interests of the Borrower;
(i)    the Borrower may make regularly scheduled payments of interest in respect of any Subordinated Indebtedness in accordance with the terms thereof and only to the extent required by and subject to the subordination provisions contained therein;
(j)    cash payments in lieu of fractional shares upon exercise of options or warrants or conversion or exchange of convertible securities, repurchases of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such securities represent a portion of the exercise price of such options, warrants or other convertible securities and repurchases of Equity Interests in connection with the withholding of a portion of the Equity Interests granted or awarded to a director or an employee to pay for the Taxes payable by such director or employee upon such grant or award;
(k)    any payments made in connection with the Transactions in accordance with the Plan of Reorganization[reserved];
(l)    notwithstanding the foregoing, if the Borrower declares a dividend or distribution in the foregoing clauses (a) through (k), the Borrower can pay any such dividend or distribution within 60 days after the date of declaration thereof; and
(m)    (i) payments of dividends on the Borrower’s common stock or purchases by the Borrower of its common stock in an aggregate amount in any calendar year not to exceed $25,000,000, so long as, the Total Leverage Ratio would not exceed 1.25 to 1.00 on a Pro Forma Basis; provided that no such Restricted Payment shall be made pursuant to this clause (m)(i) until the calendar year commencing on January 1, 2018 and (ii) payments of dividends on the Borrower’s common stock, payments of dividends on the Borrower’s Preferred Stock, purchases by the Borrower of its common stock, purchases by the Borrower of its Preferred Stock or similar distributions in an aggregate amount not to exceed $450,000,000, so long as, the Fixed Charge Coverage Ratio would not be less than 2.00 to 1.00 on a Pro Forma Basis.
7.07    Change in Nature of Business. Engage in any material line of business other than a Similar Business.
7.08    Transactions with Affiliates. Enter into, renew or extend any transaction or arrangement, including, without limitation, any purchase, sale, lease or exchange of property or assets or the rendering of any service, with any Affiliate of the Borrower or any Restricted Subsidiary (a “Related Party Transaction”) involving an aggregate consideration in excess of $25,000,000, unless the Related Party Transaction is (a) not prohibited by this Agreement and (b) on fair and reasonable terms that are not materially less favorable (as reasonably determined by the Borrower) to the Borrower or any of the relevant Restricted

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Subsidiaries than those that could be obtained in a comparable arm’s-length transaction with a Person that is not an Affiliate of the Borrower; provided that (i) any Related Party Transaction or series of Related Party Transactions with an aggregate value in excess of $50,000,000 must first be approved by a majority of the board of directors of the Borrower who are disinterested in the subject matter of the transaction pursuant to a resolution by the board of directors of the Borrower and (ii) with respect to any Related Party Transaction or series of Related Party Transactions with an aggregate value in excess of $100,000,000, the Borrower must deliver to the Administrative Agent an opinion from an accounting, appraisal, or investment banking firm of national standing in the applicable jurisdiction (x) stating that its terms are not materially less favorable to the Borrower or any of the relevant Restricted Subsidiaries that would have been obtained in a comparable transaction with an unrelated Person or (ii) as to the fairness to the Borrower or any of the relevant Restricted Subsidiaries of such Related Party Transaction from a financial point of view. Notwithstanding the foregoing, the foregoing restrictions shall not apply to the following:
(A)    transactions between or among the Borrower and any of its Loan Parties or between and among(i) any Loan Parties and (ii) any non-Loan Party Restricted Subsidiaries;
(B)    the payment of reasonable and customary fees and reimbursement of expenses payable to directors of the Borrower or any of its Restricted Subsidiaries or to any Plan, Plan administrator or Plan trustee;
(C)    loans and advances to directors, officers and employees to the extent permitted by Section 7.02;
(D)    the arrangements with respect to the procurement of services of directors, officers, independent contractors, consultants or employees in the ordinary course of business and the payment of customary compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and reasonable reimbursement arrangements in connection therewith;
(E)    payments to directors and officers of the Borrower and its Restricted Subsidiaries in respect of the indemnification of such Persons in such respective capacities from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements, as the case may be, pursuant to the Organizational Documents or other corporate action of the Borrower or its Restricted Subsidiaries, respectively, or pursuant to applicable law;
(F)    (i) intercompany Investments permitted pursuant to SectionSections 7.02(k) and 7.02(p), (ii) intercompany Indebtedness and issuances of Disqualified Equity Interests, in each case, permitted pursuant to Section 7.03(f) and (iii) Dispositions not prohibited by Section 7.05;
(G)    Restricted Payments permitted by Section 7.06; and
(H)    transactions arising under any contract, agreement, instrument or other arrangement in effect on the ClosingSeventh Amendment Effective Date and set forth

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on Schedule 7.08, as amended, modified or replaced form time to time so long as the amended, modified or new arrangements, taken as a whole at the time such arrangements are entered into, are not materially less favorable to the Borrower and its Restricted Subsidiaries than those in effect on the ClosingSeventh Amendment Effective Date.
7.09    [Reserved].
7.10    Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.
7.11    Financial Covenant. Permit the First Lien Leverage Ratio as of the end of each fiscal quarter of the Borrower to be greater than 2.00 to 1.00.
7.12    Burdensome Agreements. Enter into any Contractual Obligation that (x) limits the ability of the Borrower or any Guarantor to create, incur, assume or suffer to exist any Lien upon any of its property to secure the Obligations hereunder or (y) limits the ability of any Subsidiary to make Restricted Payments to the Borrower or any Guarantor or to otherwise transfer property to the Borrower or any Guarantor; provided, however, that the foregoing clause shall not apply to Contractual Obligations which:
(a)    solely in the case of clause (y) of this Section 7.12, exist on the date hereof and (to the extent not otherwise permitted by this Section 7.12) are listed on Schedule 7.12 as of the Seventh Amendment Effective Date;
(b)    are binding on a Restricted Subsidiary at the time such Restricted Subsidiary first becomes a Restricted Subsidiary of the Borrower, so long as such Contractual Obligations were not entered into solely in contemplation of such Person becoming a Restricted Subsidiary of the Borrower;
(c)    arise in connection with any Lien permitted by Section 7.01(i) to the extent such restrictions relate to the assets (and any proceeds in respect thereof) which are the subject of such Lien;
(d)    represent Indebtedness permitted by Section 7.03 (other than secured Indebtedness permitted by Section 7.03(k)); provided that such restrictions (i) apply solely to Restricted Subsidiaries that are not Guarantors or (ii) are no more restrictive than the limitations (taken as a whole) set forth in the Loan Documents and do not materially impair the Borrower’s ability to grant the security interests to the Collateral Trustee contemplated by the Loan Documents or pay the Obligations under the Loan Documents as and when due (as reasonably determined in good faith by the Borrower) ;
(e)    [reserved];
(f)    arise in connection with any Disposition permitted by Section 7.05 solely with respect to the assets that are the subject of such Disposition;

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(g)    are customary provisions in joint venture agreements and other similar agreements applicable solely to such joint venture or the Equity Interests therein (but excluding any such agreement related to the Gibraltar Holdings or any Specified Subsidiary);
(h)    are customary restrictions on leases, subleases, licenses or asset sale agreements otherwise permitted hereby so long as such restrictions relate to the assets subject thereto;
(i)    are customary provisions restricting subletting or assignment of any lease governing a leasehold interest of the Borrower or any Restricted Subsidiary;
(j)    are customary limitations (including financial maintenance covenants) existing under or by reason of leases entered into in the ordinary course of business;
(k)    are restrictions on cash or other deposits imposed under contracts entered into in the ordinary course of business;
(l)    are customary provisions restricting assignment of any agreements;
(m)    are restrictions imposed by any agreement relating to any Permitted Securitization Program to the extent that such restrictions relate to the assets (and any proceeds in respect thereof) that are the subject of such Permitted Securitization Program; or
(n)    are set forth in any agreement evidencing an amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing of the Contractual Obligations referred to in clauses (a) through (m) above; provided, that such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing is, in the good faith judgment of the Borrower, not materially less favorable to the Loan Party with respect to such limitations than those applicable pursuant to such Contractual Obligations prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
7.13    Restrictions on Specified Subsidiaries. (a) With respect to each Specified Subsidiary, permit such Specified Subsidiary to, (i) retain any cash other than cash (A) necessary to continue to operate in the ordinary course and comply with any Requirement of Law, as reasonably determined by it or the Borrower, or (B) where such Specified Subsidiary has taken commercially reasonable efforts to execute and deliver a deposit account control agreement perfecting the Collateral Trustee’s Lien in such deposit account; (ii) consolidate with or merge with or into any Person; (iii) incur, directly or indirectly, any Indebtedness or any other obligation or liability whatsoever other than (A) the Indebtedness and obligations under this Agreement and the other Loan Documents, (B) solely with respect to Gibraltar Holdings, intercompany Indebtedness permitted hereunder and (C) to the extent otherwise permitted hereunder, the Indebtedness and obligations under the Priority Lien Notes Documents and the ABL Credit Documents; (iv) create or suffer to exist any Lien upon any property or assets now owned or hereafter acquired, leased or licensed by it other than the Liens created under the Security Documents to which it is a party and, to the extent otherwise permitted hereunder, the Priority Lien Notes Documents; (v) sell or otherwise dispose of any Equity Interests of Gibraltar Holdings or Peabody Investments (Gibraltar) Limited, as applicable; or (vi) fail to hold itself out to the public as a

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legal entity separate and distinct from all other Persons; and (b) with respect to each Specified Subsidiary (other than Gibraltar Holdings), permit such Specified Subsidiary to, (i) engage in any business or activity or own any assets other than (A) holding 100% of the Equity Interests of Gibraltar Holdings, (B) performing its obligations and activities incidental thereto under the Loan Documents, the Priority Lien Notes Documents and the ABL Credit Documents; and (C) making Restricted Payments to a Guarantor or the Borrower; (ii) convey, transfer, lease or license any of its assets to, any Person; or (iii) create or acquire any Subsidiary or make or own any Investment in any Person (other than any intercompany Investments to a Guarantor or the Borrower), in each case, after the Closing Date; provided, that, notwithstanding the foregoing, Gibraltar Holdings can undertake any action necessary or desirable to consummate the Permitted Australian Restructuring Transactions.Seventh Amendment Effective Date.
7.14    [Reserved].
7.15    Fiscal Year. Change its fiscal year-end from December 31.
7.16    Sale and Lease-Backs. Become or remain liable as lessee or as a guarantor or other surety with respect to any lease of any property (whether real, personal or mixed), whether now owned or hereafter acquired, which the Borrower or such Restricted Subsidiary (a) has sold or transferred or is to sell or to transfer to any other Person (other than the Borrower or any of its Restricted Subsidiaries), to the extent involving the sale of assets with a fair market value in excess of $100,000,000 in the aggregate and (b) intends to use for substantially the same purpose as any other property which has been or is to be sold or transferred by the Borrower or such Restricted Subsidiary to any Person (other than the Borrower or any of its Restricted Subsidiaries) in connection with such lease.
7.17    Amendments or Waivers of Organizational Documents. Agree to any amendment, restatement, supplement or other modification to, or waiver of, any of its Organizational Documents after the ClosingSeventh Amendment Effective Date, in each case, to the extent the same would reasonably be expected to be material and adverse to any Secured Party (in the good faith determination of the Borrower), without obtaining the prior written consent of Required Lenders to such amendment, restatement, supplement or other modification or waiver.
7.18 Restructuring Transactions. Nothing in this Article VII shall prohibit the Borrower and its Subsidiaries from consummating the Permitted Restructuring Transactions.
7.18    7.19 Permitted Australian RestructuringPRB-CO Joint Venture Transactions. Nothing in this Article VII shall prohibit the Loan Parties and non-Loan Party Restricted Subsidiaries from consummating the Permitted Australian RestructuringPRB-CO Joint Venture Transactions and, for the avoidance of doubt, the restrictions in Section 7.08Article VII hereof shall not apply with respect to the Permitted Australian Restructuring Transactions (including, for the avoidance of doubt, an opinion from an accounting, appraisal or investment banking firm of national standing shall not be required)PRB-CO Joint Venture Transactions. The Administrative Agent is

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hereby authorized to deliver directions in writing to the Collateral Trustee from time to time (it being agreed that each such direction shall constitute an Act of Required Secured Parties under the Collateral Trust Agreement, and, by its execution of this Agreement, Lenders constituting Required Lenders shall be deemed to have provided written consent to each such direction) authorizing and directing the Collateral Trustee to take any actions necessary to implement the Permitted Australian RestructuringPRB-CO Joint Venture Transactions, as reasonably determined by the Administrative Agent.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01    Events of Default. Any of the following shall constitute an “Event of Default”:
(a)    Non-Payment. The Borrower or any other Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan, any L/C Borrowing or any L/C Obligation, or (ii) within five days after the same becomes due, any interest on any Loan, on any any L/C Borrowing or on any L/C Obligation, or any fee due hereunder, any other amount payable hereunder or under any other Loan Document; or
(b)    Specific Covenants. The Borrower fails to perform or observe any term, covenant or agreement contained in any of Sections 6.01(a), 6.01(b), 6.02(b), 6.03(a), 6.05, 6.11 or Article VII; provided that any Event of Default as a result of the Borrower’s failure to comply with Section 7.11 shall not constitute an Event of Default with respect to any Term Loan Facility until the date on which the Required Revolving Lenders have declared all Incremental Revolving Loans and related Obligations to be immediately due and payable in accordance with this Agreement and terminated the Incremental Revolving Commitments as a result of the Borrower’s failure to comply with Section 7.11 and such declaration has not been rescinded; or
(c)    Other Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for 30 days; provided that any Event of Default as a result of the Borrower’s failure to comply with Section 7.11 shall not constitute an Event of Default with respect to any Term Loan Facility until the date on which the Required Revolving Lenders have declared all Incremental Revolving Loans and related Obligations to be immediately due and payable in accordance with the provisions of this Agreement and terminated the Incremental Revolving Commitments as a result of the Borrower’s failure to comply with Section 7.11 and such declaration has not been rescinded; or
(d)    Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower or any other Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made; or
(e)    Cross-Default. The Borrower or any Restricted Subsidiary (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand,

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or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder) in each case having an aggregate principal amount of more than the Threshold Amount, beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness or Guarantee was created, (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity, or such Guarantee to become due or payable, or (C) fails to observe or perform any agreement or condition relating to any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, as a result of which default or other event, the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) shall have caused, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity, or such Guarantee to become due or payable; or
(f)    Insolvency Proceedings, Etc. Subject to Section 8.03, any Loan Party or any of its Restricted Subsidiaries institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any substantial part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any substantial part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or
(g)    Inability to Pay Debts; Attachment. Subject to Section 8.03, (i) the Borrower or any Restricted Subsidiary becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any substantial part of the property of any such Person and is not released, vacated or fully bonded within 60 days after its issue or levy; or
(h)    Judgments. There is entered against the Borrower or any Restricted Subsidiary a final judgment or order for the payment of money in an aggregate amount exceeding the Threshold Amount (to the extent not covered by independent third party insurance), and such judgments or orders shall not have been vacated, discharged, stayed or bonded pending appeal within 60 days from the entry thereof; or
(i)    ERISA. The occurrence of any of the following events that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect: (i) an ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in an actual obligation to pay money of the Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC, or (ii) the Borrower or any

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ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan; or
(j)    Invalidity of Loan Documents. Any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or Payment In Full, ceases to be in full force and effect; or any Loan Party or any other Person contests in any manner the validity or enforceability of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan Document; or any Security Document ceases to create a valid Lien with the priority required thereby on the Collateral covered thereby (other than as expressly permitted thereunder or solely as a result of the acts or omissions of the Administrative Agent or Collateral Trustee (including failure to maintain possession of any stock certificates, or other instruments delivered to it under any Security Document)); or
(k)    Change of Control. There occurs any Change of Control; or
(l)    Subordinated Indebtedness. Any Subordinated Indebtedness or any Junior Lien Indebtedness permitted hereunder or the guarantees thereof or, in the case of Junior Lien Indebtedness, the Liens securing such Junior Lien Indebtedness, shall cease, for any reason, to be validly subordinated to the Obligations of the Loan Parties hereunder, as provided in the Collateral Trust Agreement or the indenture governing such Subordinated Indebtedness or Junior Lien Indebtedness, or any Loan Party, any Affiliate of any Loan Party, the trustee in respect of the Subordinated Notes or Junior Lien Indebtedness or the holders of at least 25% in aggregate principal amount of the Subordinated Notes or Junior Lien Indebtedness shall so assert.
8.02    Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders (except that, with respect to an Event of Default under Section 8.01(b) or (c), in each case, when such Event of Default does not exist with respect to the Term Loans, Administrative Agent may only act at the request of, or with the consent of, Required Facility Lenders under any Incrementalthe Revolving Facility), take any or all of the following actions:
(a)    declare the commitment of each Lender to make Loans and any obligation of the L/C Issuers to issue or make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;
(b)    declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower;
(c)    require that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount thereof); and
(d)    exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents or applicable law;

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provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under Debtor Relief Laws of the United States or any other Event of Default under Section 8.01(f) or (g) hereof, the obligation of each Lender to make Loans and any obligation of any L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.
8.03    Exclusion of Immaterial Subsidiaries. Solely for the purposes of determining whether an Event of Default has occurred under clause (f) or (g) of Section 8.01, any reference in any such clause to any Restricted Subsidiary shall be deemed not to include any Restricted Subsidiary affected by any event or circumstance referred to in any such clause that did not, as of the last day of the fiscal quarter of the Borrower most recently ended, have assets with a value in excess of 5% of the Tangible Assets or 5% of consolidated total revenues, in each case, of the Borrower and the Restricted Subsidiaries as of such date; provided that if it is necessary to exclude more than one Restricted Subsidiary from clause (f) or (g) of Section 8.01 pursuant to this Section 8.03 in order to avoid an Event of Default thereunder, all excluded Restricted Subsidiaries shall be considered to be a single consolidated Restricted Subsidiary for purposes of determining whether the condition specified above is satisfied.
8.04    Application of Funds. Subject to the Collateral Trust Agreement, after the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.02), any amounts received on account of the Secured Obligations (including proceeds of Collateral) shall be applied by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article III) payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and any L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders and any L/C Issuer (including fees and time charges for attorneys who may be employees of any Lender or any L/C Issuer) and amounts payable under Article III), ratably among them in proportion to the respective amounts described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably among the Lenders and any L/C Issuer in proportion to the respective amounts described in this clause Third payable to them;

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Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans and L/C Borrowings and to payment of the unpaid Secured Hedging Obligations, ratably among the Lenders, the L/C Issuers and Hedge Banks to the Secured Hedging Agreements giving rise to such Secured Hedging Obligations in proportion to the respective amounts described in this clause Fourth held by them;
Fifth, to the Administrative Agent for the account of any L/C Issuer, to Cash Collateralize that portion of the L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit;
Sixth, to payment of the unpaid Secured Cash Management Obligations, ratably among the Cash Management Banks party to the SpecifiedSecured Cash Management Agreements giving rise to such Secured Cash Management Obligations in proportion to the respective amounts described in this clause Sixth held by them; and
Last, the balance, if any, after all of the Secured Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to the terms hereof, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Secured Obligations, if any, in the order set forth above.
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01    Appointment and Authority. Each of the Lenders and each L/C Issuer hereby irrevocably appoints Goldman SachsJPMorgan Chase Bank USA, N.A. to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and irrevocably authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers, rights and remedies as are delegated or granted to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. Except with respect to Section 9.06, Section 9.10 and Section 9.12, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuers, and neither the Borrower, nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions. In performing its functions and duties hereunder, the Administrative Agent shall act solely as an agent of the Lenders and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with or for the Borrower or any of its Subsidiaries.
9.02    Rights as a Lender. The agency hereby created shall in no way impair or affect any of the rights and powers of, or impose any duties or obligations upon, the Administrative Agent in its individual capacity as a Lender hereunder. With respect to its participation in the Loans, the Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or

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“Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder, and may accept fees and other considerations from the Borrower for service in connection herewith and otherwise without any duty to account therefor to the Lenders.
9.03    Exculpatory Provisions. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, the Administrative Agent:
(a)    shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing;
(b)    shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including, for the avoidance of doubt, any action that, in its opinion or the opinion of its counsel, may violate the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and
(c)    shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity; and
(d)    shall not be responsible or have any liability for or in connection with, or have any duty to ascertain, inquire into, monitor, maintain, update or enforce, compliance with the provisions hereof relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution.
Neither the Administrative Agent nor any of its officers, partners, directors, employees or agents shall be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section 10.01 and 8.02) or (ii) in the absence of its own bad faith, gross negligence or willful misconduct, as determined by a final, non-appealable judgment

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of a court of competent jurisdiction. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until notice describing such Default is given to the Administrative Agent by the Borrower, a Lender or an L/C Issuer.
The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any recital, statement, warranty or representation made in or in connection with this Agreement or any other Loan Document or made in any written or oral statements made in connection with the Loan Documents and the transactions contemplated thereby, (ii) the contents of any financial or other statements, instruments, certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, whether made by the Administrative Agent to the Lenders or the L/C Issuers or by or on behalf of any Loan Party to the Administrative Agent or any Lender or any L/C Issuer in connection with the Loan Documents and the transactions contemplated thereby, (iii) the financial condition or business affairs of any Loan Party or any other Person liable for the payment of any Obligations, (iv) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the use of proceeds of the Loans or Letters of Credit or the occurrence or possible occurrence of any Default or Event of Default or to make any disclosures with respect to the foregoing, (iv) the execution, validity, enforceability, effectiveness, genuineness, collectability or sufficiency of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. Anything contained herein to the contrary notwithstanding, the Administrative Agent shall not have any liability arising from confirmation of the amount of outstanding Loans or the component amounts thereof.
9.04    Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or such L/C Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender or such L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent shall be entitled to rely on and may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
9.05    Delegation of Duties. The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub agents appointed by the Administrative Agent. The Administrative Agent and any such sub agent may perform any and all of its duties and

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exercise its rights and powers by or through their respective Related Parties. The exculpatory, indemnification and other provisions of this Article and Section 10.04 shall apply to any such sub agent and to the Related Parties of the Administrative Agent and any such sub agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. All of the rights, benefits, and privileges (including the exculpatory and indemnification provisions) of this Article shall apply to any such sub agent and to the Related Parties of any such sub agent, and shall apply to their respective activities as sub agent as if such sub agent and Related Parties were named herein. Notwithstanding anything herein to the contrary, with respect to each sub agent appointed by the Administrative Agent, (i) such sub agent shall be a third party beneficiary under this Agreement with respect to all such rights, benefits and privileges (including exculpatory rights and rights to indemnification) and shall have all of the rights and benefits of a third party beneficiary, including an independent right of action to enforce such rights, benefits and privileges (including exculpatory rights and rights to indemnification) directly, without the consent or joinder of any other Person, against any or all Loan Parties and the Lenders, (ii) such rights, benefits and privileges (including exculpatory rights and rights to indemnification) shall not be modified or amended without the consent of such sub agent, and (iii) such sub agent shall only have obligations to Administrative Agent and not to any Loan Party, Lender or any other Person, and no Loan Party, Lender, L/C Issuer or any other Person shall have any rights, directly or indirectly, as a third party beneficiary or otherwise, against such sub agent.
9.06    Resignation of Administrative Agent. The Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuers and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, with the approval of the Borrower unless an Event of Default under Section 8.01(f) or (g) has occurred or is continuing (such approval not to be unreasonably withheld), to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may on behalf of the Lenders and the L/C Issuers, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that if the Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders or the L/C Issuers under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (2) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each L/C Issuer directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged

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from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). Upon the acceptance of a successor’s appointment as the Administrative Agent, hereunder, and upon the execution and filing or recording of such financing statements, or amendments thereto, and such other instruments or notices, as may be necessary or desirable, or as the Required Lenders may request, in order to continue the perfection of the Liens granted or purported to be granted by the Security Documents, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 10.04 shall continue in effect for the benefit of such retiring Administrative Agent, its sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.
9.07    Non-Reliance on Administrative Agent and Other Lenders .
(a)    Each Lender and L/C Issuer represents and warrants that it has, independently and without reliance upon the Administrative Agent, the Arrangers or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and L/C Issuer also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
(b)    The Administrative Agent shall not have any duty or responsibility, either initially or on a continuing basis, to make any such investigation or any such analysis on behalf of the Lenders or L/C Issuers or to provide any Lender or L/C Issuer with any credit or other information with respect thereto, whether coming into its possession before the making of the Loans or Letters of Credit or at any time or times thereafter, and the Administrative Agent shall not have any responsibility with respect to the accuracy of or the completeness of any information provided to the Lenders or L/C Issuers. Each Lender and L/C Issuer, by delivering its signature page to this Agreement or an Assignment and Assumption and funding its Term Loan on the Closing Date, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be approved by the Administrative Agent, Required Lenders or Lenders, as applicable on the Closing Date.
(c)    Each Lender acknowledges that Borrower and certain Affiliates of the Loan Parties are Eligible Assignees hereunder and may purchase Term Loans hereunder from Lenders from time to time, subject to the restrictions set forth in the definition of “Eligible Assignee” and Sections 2.19 and 2.20.

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9.08    No Other Duties, Etc. Except as expressly set forth herein, none of the bookrunners, Arrangers or other titles listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or an L/C Issuer hereunder. The Administrative Agent shall have only those duties and responsibilities that are expressly specified herein and the other Loan Documents. The Administrative Agent may exercise such powers, rights and remedies and perform such duties by or through its agents or employees. The Administrative Agent shall not have, by reason hereof or any of the other Loan Documents, a fiduciary relationship in respect of any Lender or any other Person; and nothing herein or any of the other Loan Documents, expressed or implied, is intended to or shall be so construed as to impose upon the Administrative Agent any obligations in respect hereof or any of the other Loan Documents except as expressly set forth herein or therein.
9.09    Administrative Agent May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a)    to file a verified statement pursuant to rule 2019 of the Federal Rules of Bankruptcy Procedure that, in its sole opinion, complies with such rule’s disclosure requirements for entities representing more than one creditor;
(b)    to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuers and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuers and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuers and the Administrative Agent under Sections 2.03(i) and (j), 2.09 and 10.04) allowed in such judicial proceeding; and
(c)    to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and each L/C Issuer to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C Issuers, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Section 2.09 and 10.04. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Administrative Agent, its agents and counsel, and any other amounts due the Administrative Agents under Sections 2.09

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and 10.04 out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Lenders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or any L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
9.10    Guaranty and Collateral Matters.
(a)    Each Secured Party hereby authorizes Administrative Agent or Collateral Trustee, as applicable, on behalf of and for the benefit of Secured Parties, to be the agent for and representative of Secured Parties with respect to the Guaranty, the Collateral and the Security Documents, as applicable; provided that neither the Administrative Agent nor Collateral Trustee shall owe any fiduciary duty, duty of loyalty, duty of care, duty of disclosure or any other obligation whatsoever to any holder of Secured Obligations with respect to any Secured Hedging Agreement. Subject to Section 10.01, without further written consent or authorization from any Secured Party, the Administrative Agent or Collateral Trustee, as applicable, may execute any documents or instruments necessary to (i) in connection with a sale or disposition of assets permitted by this Agreement, release any Liens encumbering any item of Collateral that is the subject of such sale or other disposition of assets or to which the Required Lenders (or such other Lenders as may be required to give such consent under Section 10.01) have otherwise consented or (ii) release any Guarantor from the Guaranty pursuant to Section 10.21 or with respect to which Required Lenders (or such other Lenders as may be required to give such consent under Section 10.01) have otherwise consented.
(b)    The Lenders and L/C Issuers irrevocably authorize the Administrative Agent to release any Guarantor from its obligations under the Guaranty in accordance with the terms of Section 10.21. Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10.
(c)    The Lenders irrevocably authorize the Collateral Trustee, at its option and in its discretion, to release any Lien on any property granted to or held by the Collateral Trustee under any Loan Document in accordance with the terms of Section 10.21. Upon request by the Administrative Agent or the Collateral Trustee at any time, the Required Lenders will confirm in writing the Collateral Trustee’s authority to release its interest in particular types or items of property in accordance with this Section.
9.11    Withholding Tax. To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Without limiting

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the provisions of Section 3.01, each Lender shall, and does hereby, indemnify the Administrative Agent, and shall make payable in respect thereof within 30 days after demand therefor, against any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent by the IRS or any other Governmental Authority as a result of the failure of the Administrative Agent to properly withhold tax from amounts paid to or for the account of any Lender for any reason (including, without limitation, because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding tax ineffective). 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 this Agreement or any other Loan Document against any amount due the Administrative Agent under this Section 9.11. The agreements in this Section 9.11 shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, and the repayment, satisfaction or discharge of all other obligations.
9.12    Intercreditor AgreementsCollateral Trust Agreement, Collateral Matters and Specified Amendments.
(a)    Each Lender (and each Person that becomes a Lender hereunder pursuant to Section 10.06) hereby authorizes and directs the Administrative Agent and the Collateral Trustee to enter into each ofthe Additional Secured Debt Designation (as defined in the Collateral Trust Agreement and any ABL Intercreditor Agreement, as applicable,) on behalf of such Lender needed to effectuate the transactions permitted by this Agreement and agrees that the Administrative Agent and the Collateral Trustee may take such actions on its behalf as is contemplated by the terms of such applicable Intercreditorthe Collateral Trust Agreement. Without limiting the provisions of Sections 9.03 and 10.04, each Lender hereby consents to (i) Goldman SachsJPMorgan Chase Bank USA, N.A. and any successor serving in the capacity of Administrative Agent and agrees not to assert any claim (including as a result of any conflict of interest) against Goldman SachsJPMorgan Chase Bank USA, N.A., or any such successor, arising from the role of the Administrative Agent or other agent under the Security Documents or any such Intercreditor Agreement so long as it is either acting in accordance with the terms of such documents or otherwise has not engaged in bad faith, gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction and (ii) Wilmington Trust, National Association or any such successor, arising from its role as the Collateral Trustee under the Security Documents or any such Intercreditor Agreement so long as it is either acting in accordance with the terms of such documents or otherwise has not engaged in bad faith, gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction. In addition, each of Goldman SachsJPMorgan Chase Bank USA, N.A. and Wilmington Trust, National Association, or any such successors, shall be authorized, without the consent of any Lender, to execute or to enter into amendments of, and amendments and restatements of, the Security Documents, any such Intercreditor Agreement and any additional and replacement intercreditor agreements, in each case, in order to effect the subordination of and to provide for

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certain additional rights, obligations and limitations in respect of, any Liens required by the terms of this Agreement to be Liens junior to, or pari passu with, the Secured Obligations, that are incurred as permitted by this Agreement, and to establish certain relative rights as between the holders of the Secured Obligations and the holders of the Indebtedness secured by such Liens junior or pari passu with the Secured Obligations, including as contemplated by Section 6.16(g) and Section 7.01.
(b)    The Lenders irrevocably authorize the Administrative Agent to enter into any amendment contemplated by Sections 2.15(g), 2.16(e), 6.16(g), and 7.01(t) and any writing which creates a deemed amendment in connection with a Permitted Amendment.
9.13    Certain ERISA Matters.
(a)    Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and itsthe Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:
(i)    such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) of one or more Benefit Plans in connection with the Loans, the Letters of Credit or the Commitments,
(ii)    the prohibited transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect toso as to exempt from the prohibitions of Section 406 of ERISA and Section 4975 of the Code such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
(iii)    (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform with respect to the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14, and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance with respect to the Loans, the Letters of Credit, the Commitments and this Agreement, or

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(iv)    such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.
(b)    In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such(2) a Lender has not provided another representation, warranty and covenant as provided inin accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, the Arrangers and its their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that:
(i) none of the Administrative Agent, the Arrangers or any of itstheir respective Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any other Loan Document or any documents related hereto or thereto),.
(ii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance with respect to the Loans, the Letters of Credit, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50,000,000, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E),
(iii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in respect of the Obligations),
(iv) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance with respect to the Loans, the Letters of Credit, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans, the Letters of Credit, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and
(v) no fee or other compensation is being paid directly to the Administrative Agent or any of its respective Affiliates for investment advice (as opposed to other services) in connection with the Loans, the Letters of Credit, the Commitments or this Agreement.
(c) The Administrative Agent hereby informs the Lenders that it is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit,

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the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans, the Letters of Credit or the Commitments for an amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the Commitments by such Lender, or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.
ARTICLE X.
MISCELLANEOUS
10.01    Amendments, Etc. Except as set forth in Sections 2.15 and 2.16, no amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrower, or any other Loan Party therefrom, shall be effective unless in writing signed by (1) the Required Lenders and the Borrower, or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent (except, in each case, as set forth in clauses (2), (3) and (4) below), (2) [reserved], (3) the Required Facility Lenders and the Borrower and acknowledged by the Administrative Agent in the case of clauses (u) and (v) of the second proviso after clause (h) below and (4) the parties to the Fee Letters in the case of clause (z) of the second proviso after clause (h) below, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall:
(a)    extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02) without the written consent of such Lender; provided, no amendment, modification or waiver of any condition precedent, covenant, Default or Event of Default shall constitute an increase in any Incremental Revolving Commitment of any Lender;
(b)    postpone any date fixed by this Agreement or any other Loan Document for any payment of principal, interest, fees or other amounts due to the Lenders (or any of them) (it being understood that the waiver of, or amendment to the terms of, any mandatory prepayment shall not constitute such a postponement) or any mandatory reduction of the Aggregate Commitments hereunder without the written consent of each Lender directly affected thereby;
(c)    waive, reduce or postpone the principal of, or the stated rate of interest specified herein on, any Loan, or Unreimbursed Amount or (subject to clause (z) of the second proviso to this Section 10.01) any fees or premiums or other amounts payable hereunder without the written consent of each Lender directly affected thereby; provided, however, that, without limiting the effect of clause (h) below or the provisos appearing after clause (h) below, only the consent of the Required Lenders shall be necessary (i) to amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest or Letter of Credit Fees at the Default Rate, (ii) to amend any financial covenant hereunder (or any defined term used therein) (other than Section 7.11 (or any defined term used therein), which shall be subject to the first proviso after clause (h)

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below) even if the effect of such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder or (iii) to waive, reduce or postpone any scheduled prepayment;
(d)    change Section 2.13 or Section 8.04 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender adversely affected thereby;
(e)    reduce the principal amount of any reimbursement obligation in respect of Letters of Credit issued under the Incremental Revolving Commitments or extend the stated expiration date of any such Letter of Credit beyond the Incremental Revolving Facility Maturity Date (unless Cash Collateralized pursuant to the terms of Section 2.03(g)) without the written consent of each Incremental Revolving Lender adversely affected thereby;
(f)    change any provision of this Section 10.01 or the definitions of “Required Lenders”, “Required Revolving Lenders” or “Applicable Percentage” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender under the applicable Facility affected thereby; provided, with the consent of the Required Lenders, additional extensions of credit pursuant hereto may be included in the determination of ‘Required Lenders” or “Applicable Percentage” on substantially the same basis as the Commitments and the Term Loans are included on the Closing Date;
(g)    other than as permitted by Section 9.10 and Section 10.21, release (i) all or substantially all of the Guarantors from the Guaranty except as expressly provided in the Loan Documents and except in connection with a “credit bid” undertaken by the Administrative Agent or Collateral Trustee at the direction of the Required Lenders pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code or other sale or disposition of assets in connection with an enforcement action with respect to the Collateral permitted pursuant to the Loan Documents (in which case only the consent of the Required Lenders will be needed for such release) or (ii) all or substantially all of the collateral covered by the Security Documents without the written consent of each Lender; or
(h)    consent to the assignment or transfer by any Loan Party of any of its rights and obligations under any Loan Documents without the written consent of each Lender adversely affected thereby;
provided that (x) for the avoidance doubt, all Lenders shall be deemed directly affected thereby with respect to any amendment described in clauses (f), (g) and (h) and (y) only the consent of the Required Revolving Lenders (and not the consent of the Required Lenders) shall be required to amend or waive the terms of Section 7.11 (and related definitions, if any, solely as used in such provision) or to waive an Event of Default solely as it relates to Section 7.11;
and, provided further, that (ut) any condition set forth in Section 4.02 as to any Borrowing under the Incremental Revolving Facility may be waived by only the Required Revolving Lenders; (vu) any term or provisions of a particular Facility may be amended, waived or otherwise modified with only the consent of the Required Facility Lenders under such

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Facility, so long as such amendment, waiver or modification does not directly affect the Lenders under any other Facility; (wv) no amendment, modification, termination or waiver of any provision of the Loan Documents, or consent to any departure by any Loan Party therefrom, shall amend, modify or waive this Agreement or the Security Agreement so as to alter the ratable treatment of Obligations and Secured Hedging Obligations (including pursuant to Section 8.04) or the definition of “Hedging Obligations,” “Hedging Agreement,” “Obligations,” “Secured Hedging Agreement”, “Secured Hedging Obligations” or “Secured Obligations” (as defined herein or in any applicable Security Documents) in each case in a manner adverse to any Hedge Bank with Secured Hedging Obligations then outstanding without the written consent of any such party; (w) no amendment, waiver or consent shall amend, modify or otherwise affect the rights or duties of any L/C Issuer under the Credit Agreement or under any other Loan Document unless in writing executed by such L/C Issuer; (x) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; (y) no amendment, modification, termination or waiver of any provision of the Loan Documents, or consent to any departure by any Loan Party therefrom, shall (i) amend, modify, terminate or waive any provision hereof relating to the swing line subfacility (if any) provided under the Incremental Revolving Commitments without the consent of the applicable swing line lender; (ii) alter the required application of any repayments or prepayments as between Classes pursuant to Sections 2.05(a) or 2.05(k) without the consent of the Required Facility Lenders of each Class which is being allocated a lesser repayment or prepayment as a result thereof; provided, Required Lenders may waive, in whole or in part, any prepayment so long as the application, as between Classes, of any portion of such prepayment which is still required to be made is not altered; or (iii) amend, modify, terminate or waive any obligation of Lender relating to the purchase of participations in Letters of Credit issued under the Incremental Revolving Commitments without the written consent of the Administrative Agent and the applicable L/C Issuer and (z) each Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties to the applicable Fee Letter. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that (i) the Commitment of such Lender may not be increased or extended and (ii) the principal of any Loan owed to such Lender may not be reduced without the consent of such Lender.
Notwithstanding the foregoing, the Borrower and the Administrative Agent may amend this Agreement and the other Loan Documents (and may authorize the Collateral Trustee to amend the Collateral Trust Agreement) without the consent of any Lender (a) to cure any ambiguity, omission, mistake, error, defect or inconsistency (as reasonably determined by the Administrative Agent), so long as such amendment, modification or supplement does not adversely affect the rights of any Lender or the Lenders shall have received at least five Business Days’ prior written notice thereof and the Administrative agent shall not have received, within five Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment, (b) to add a Guarantor with respect to the Loans or collateral to secure the Loans or (c) to make administrative changes that do not adversely affect the rights of any Lender (including as contemplated by Section 2.15(d)(v), 2.16(d)(v) and the definition of Permitted Amendments). In addition, the Administrative Agent, without the consent of any Lender, shall be permitted to enter into (and direct the Collateral Trustee, as applicable, to enter into) any amendments, waivers,

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modifications or supplements to any Intercreditorthe Collateral Trust Agreement, if the Administrative Agent would have been permitted hereunder to enter into a new IntercreditorCollateral Trust Agreement which contained the terms set forth in such amendment, waiver, modification or supplement, at the time when such amendment, waiver, modification or supplement is entered into.
In addition, notwithstanding the foregoing, in situations not otherwise governed by Sections 2.15 and 2.16, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrower (x) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof (collectively, the “Additional Extensions of Credit”) to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Incremental Revolving Loans and the accrued interest and fees in respect thereof and (y) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and the Required Revolving Lenders; provided, however, that no such amendment shall permit the Additional Extensions of Credit to share in preference to any Facility in the application of any mandatory prepayments without the consent of Required Facility Lender in respect of such Facility (without giving effect to such Extensions of Credit).
The Borrower may, by written notice to the Administrative Agent from time to time, make one or more offers to all Lenders under the applicable Facility to make one or more Permitted Amendments to such Facility pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrower. Such notice shall set forth (a) the terms and conditions of the requested Permitted Amendments and (b) the date on which responses from the applicable Lenders in respect of such Permitted Amendment are required to be received (which shall not be less than three Business Days after the date of such notice). Only those Lenders that consent to such Permitted Amendment (the “Accepting Lenders”) will have the maturity of their applicable Loans and Commitments extended and be entitled to the benefits provided thereby, which shall have effect notwithstanding the pro rata sharing provisions of Section 2.13. The Borrower and each Accepting Lender shall execute and deliver to the Administrative Agent such documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Permitted Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Permitted Amendment, this Agreement shall be deemed amended, as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the terms and provisions of the Permitted Amendment with respect to the Loans and Commitments of the Accepting Lenders (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders in a manner consistent with the other Loans and Commitments under this Agreement or as contemplated by the Permitted Amendment).
The Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender or any L/C Issuer, execute amendments, modifications, waivers or consents on behalf of such Lender or L/C Issuer. Any waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any

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Loan Party in any case shall entitle any Loan Party to any other or further notice or demand in similar or other circumstances.
Any such waiver and any such amendment or modification pursuant to this Section 10.01 shall be binding upon the Borrower, the Lenders, the L/C Issuers the Administrative Agent and all future holders of the Loans. In the case of any waiver, the Borrower, the Lenders, L/C Issuers and the Administrative Agent shall be restored to their former positions and rights hereunder and under the other Loan Documents, and any Default or Event of Default that is waived pursuant to this Section 10.01 shall be deemed to be cured and not continuing during the period of such waiver.
10.02    Notices; Effectiveness; Electronic Communication.
(a)    Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone, all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail, sent by telecopier (except for any notices sent to the Administrative Agent) as follows or sent by electronic communication as provided in subsection (b) below, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
(i)    if to the Borrower or the Administrative Agent to the address, telecopier number, electronic mail address or telephone number specified for such Person on Schedule 10.02;
(ii)    if to any other Lender, to the address, telecopier number, electronic mail address or telephone number specified on Schedule 10.02 or in its Administrative Questionnaire; and
(iii)    if to any L/C Issuer, to the address, telecopier number, electronic mail address or telephone number specified on Schedule 1 to the Second Amendment or Schedule 1 to the Third Amendment, as applicable10.02 or in its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by telecopier shall be deemed to have been given when received (except that, if not received during normal business hours for the recipient, shall be deemed to have been received at the opening of business on the next business day for the recipient). Notices delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b). Notwithstanding the foregoing, (a) no notice to the Administrative Agent shall be effective until received by the Administrative Agent and (b) any such notice or other communication shall at the request of the Administrative Agent be provided to any sub agent appointed pursuant to Section 9.3(c) as designated by the Administrative Agent from time to time.
(b)    Electronic Communications. Notices and other communications to the Administrative Agent or the Lenders and L/C Issuers hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites, including the Platform) pursuant to procedures approved by the Administrative Agent, provided that the

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foregoing shall not apply to notices to any Lender or L/C Issuer pursuant to Article II if such Lender or L/C Issuers, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent or the Borrower may, in their discretion, agree to accept notices and other communications to the Administrative Agent or the Borrower hereunder by electronic communications pursuant to procedures approved by the Administrative Agent or the Borrower, provided that approval of such procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to the Lenders and L/C Issuers to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.
(c)    The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. Each Loan Party understands that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender, L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s or the Administrative Agent’s transmission of Borrower Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses have resulted from the gross negligence or willful misconduct of such Agent Party, as determined by a final non-appealable judgment of a court of competent jurisdiction; provided, however, that in no event shall the Borrower or any Agent Party have any liability to the Borrower, any Lender, L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages); provided that such waiver shall not limit any Loan Party’s reimbursement or indemnification obligations under Sections 10.04(a) or 10.4(b), respectively. Each Loan Party, each Lender, and the Administrative Agent agrees that the Administrative Agent may, but shall not be obligated to, store any electronic communication on the Platform in accordance with the Administrative Agent’s customary document retention procedures and policies.

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(d)    Defaults. Any notice of Default or Event of Default may be provided by telephone if confirmed promptly thereafter by delivery of written notice thereof.
(e)    Change of Address, Etc. The Borrower, the Administrative Agent and any L/C Issuer may change its address, electronic mail address, telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, electronic mail address, telecopier or telephone number for notices and other communications hereunder by notice to the Borrower, the Administrative Agent and any L/C Issuer. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender.
(f)    Reliance by Administrative Agent, L/C Issuers and Lenders. The Administrative Agent, the L/C Issuers and the Lenders shall be entitled to rely and act upon any notices (including telephonic Borrowing Notices) purportedly given by or on behalf of the Borrower, even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
(g)    Private Side Information Contacts. Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States federal and state securities laws, to make reference to information that is not made available through the “Public-Side Information” portion of the Platform and that may contain Private-Side Information. In the event that any Public Lender has determined for itself to not access any information disclosed through the Platform or otherwise, such Public Lender acknowledges that (i) other Lenders may have availed themselves of such information and (ii) neither the Borrower nor the Administrative Agent has any responsibility for such Public Lender’s decision to limit the scope of the information it has obtained in connection with this Agreement and the other Loan Documents.
10.03    No Waiver; Cumulative Remedies. No failure by any Lender, any L/C Issuer or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall impair such right, remedy, power or privilege or be construed to be a waiver of any default or acquiescence therein; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder or under any other Loan Document preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided and in the other Loan Documents are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. Any forbearance or failure to exercise, and any delay in exercising, any right, power or remedy hereunder shall not impair any such right, power or remedy or be construed to be a waiver thereof, nor shall it preclude the further exercise of any such right, power or remedy.

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10.04    Expenses; Indemnity; Damage Waiver.
(a)    Costs and Expenses. The Borrower shall pay (i) all reasonable and documented out-of-pocket legal and other expenses incurred by the Agents and their respective Affiliates and the Collateral Trustee (including the reasonable and documented fees, charges and disbursements of a single counsel for the Agents and the Arrangers, a single local counsel in each relevant jurisdiction and any special counsel reasonably deemed necessary by the Administrative Agent and a separate counsel for the Collateral Trustee), in connection with the syndication of the credit facilities provided for herein, the preparation, due diligence, negotiation, execution, delivery, administration and enforcement of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable and documented out-of-pocket expenses incurred by any L/C Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable and documented out-of-pocket legal and other expenses (including the cost of any investigation or preparation) incurred by any Agent or any Lender or any L/C Issuer or Collateral Trustee (including the reasonable fees, charges and disbursements of any counsel for any Agent or any Lender or any L/C Issuer, limited to one firm of counsel for all Indemnitees (as defined below), taken as a whole, and if necessary, by a single firm of local counsel in each appropriate jurisdiction for all such Indemnitees, taken as a whole (and, in the case of an actual or perceived conflict of interest where the Indemnified Party affected by such conflict notifies the Borrower of the existence of such conflict, of another firm of counsel for such affected Indemnitees and local counsel for the conflicted party and a separate counsel for the Collateral Trustee), in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including all such reasonable and documented out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b)    Indemnification by the Borrower. The Borrower shall indemnify the Agents (and any sub-agent thereof), the Arrangers, each Lender and each L/C Issuer and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities (including any Environmental Liability) and related reasonable and documented out-of-pocket fees and expenses (including the reasonable documented out-of-pocket fees, charges and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee (whether or not such investigation, litigation, claim or proceeding is brought by the Borrower, the Borrower’s equity holders, affiliates or creditors or an Indemnitee and whether or not any such Indemnitee is otherwise a party thereto) or by the Borrower or any other Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration and enforcement of this Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the applicable L/C Issuer to honor a demand for payment under a Letter of Credit if the documents

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presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) and (iii) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are found in a final, non-appealable judgment by a court of competent jurisdiction to (x) have resulted from the bad faith, gross negligence or willful misconduct of such Indemnitee (or any of such Indemnitee’s controlled affiliates or any of its or their respective officers, directors, employees, agents, controlling persons or members of any of the foregoing), as determined by a final, non-appealable judgment of a court of competent jurisdiction, (y) result from a claim brought by the Borrower or any other Loan Party against an Indemnitee for material breach of such Indemnitee’s obligations hereunder or under any other Loan Document or (z) have arisen out of or in connection with any claim, litigation, loss or proceeding not involving an act or omission of the Borrower or any of its Related Parties and that is brought by an Indemnitee against another Indemnitee (other than any claims against an Indemnitee in its capacity or in fulfilling its role as an administrative agent or arranger or any similar role under this Agreement or any claims arising out of any act or omission of the Borrower or any of its Affiliates). The Borrower also agrees that no Indemnitee shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Borrower for or in connection with this Agreement or the other Loan Documents, any transactions contemplated hereby or thereby or such Indemnitees’ role or services in connection herewith or therewith, except to the extent that any liability for losses, claims, demands, damages, liabilities or expenses incurred by the Borrower (i) resulted from the bad faith, gross negligence or willful misconduct of such Indemnitee or (ii) resulted from a material breach by such Indemnitee (or any of such Indemnitee’s controlled affiliates or any of its or their respective officers, directors, employees, agents, controlling persons or members of any of the foregoing) of the terms of this Agreement or the other Loan Documents (in the case of clauses (i) and (ii), as determined by a court of competent jurisdiction in a final, non-appealable judgment). This Section 10.04(b) shall not apply with respect to Taxes other than any taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
(c)    Reimbursement by Lenders. To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it to the Agents (or any sub-agent thereof), the Arrangers, the L/C Issuers or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agents (or any such sub-agent), the Arrangers, the L/C Issuers or such Related Party, as the case may be, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Agents (or any such sub-agent), the Arrangers or the L/C Issuers in its capacity such, or against any Related Party of any of the foregoing acting for the Agents (or any such sub-agent) or the Arrangers or L/C Issuers in connection with such capacity. In addition, to the extent that the Borrower or the Grantors (as defined in the Collateral Trust Agreement) for any reason fail to indefeasibly pay any amount required under subsection (a) or (b) of this Section or Section 7.12(a) of the Collateral Trust Agreement to be paid by the Borrower or such Grantors to the Collateral Trustee or any Related Party of the Collateral Trustee, each Lender severally agrees to pay to the Collateral Trustee or such Related Party such Lender’s Applicable

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Percentage (determined as of the time the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount in connection with the Collateral Trustee following a direction of an Act of Required Secured Parties (as defined in the Collateral Trust Agreement) prior to the occurrence of the earlier of the Discharge of Credit Agreement Obligations (as defined in the Collateral Trust Agreement) or the Outstanding Loan Threshold Date (as defined in the Collateral Trust Agreement); provided that such Indemnified Liability (as defined in the Collateral Trust Agreement) was incurred by or asserted against the Collateral Trustee in its capacity as such, or against any Related Party of the Collateral Trustee acting for the Collateral Trustee in connection with such capacity. The obligations of the Lenders under this subsection (c) are subject to the provisions of Section 2.12(d).
(d)    Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable law, no party hereto shall assert, and each hereby waives, any claim against the Borrower and its Affiliates or any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof; provided that such waiver shall not limit any Loan Party’s reimbursement or indemnification obligations under Sections 10.04(a) or 10.4(b), respectively. No Indemnitee referred to in subsection (b) above or the Borrower and its Affiliates shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby, except to the extent such damages result from the gross negligence or willful misconduct of such Indemnitee, as determined by a final, non-appealable judgment of a court of competent jurisdiction.
(e)    Payments. All amounts due under this Section shall be payable not later than ten Business Days after demand therefor.
(f)    Survival. The agreements in this Section shall survive the resignation of the Agents and the Arrangers or any L/C Issuer, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations and Secured Hedging Obligations. The reimbursement, indemnity and contribution obligations of the Borrower under this Section 10.04 will be in addition to any liability which the Borrower may otherwise have, will extend upon the same terms and conditions to any affiliate of any Indemnitee and the partners, members, directors, agents, employees, and controlling persons (if any), as the case may be, of any Indemnitee and any such affiliate, and will be binding upon and inure to the benefit of any successors and assigns of the Borrower, any Indemnitee, any such affiliate, and any such Person.
10.05    Marshalling; Payments Set Aside. Neither any Agent nor any Lender or Collateral Trustee shall be under any obligation to marshal any assets in favor of any Loan Party or any other Person or against or in payment of any or all of the Obligations. To the extent that any payment by or on behalf of the Borrower is made to the Agents, the Arrangers, any L/C Issuer or any Lender, or the Agents, the Arrangers, any L/C Issuer or any Lender or the Collateral Trustee enforces any security interests or exercises its right of setoff,

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and such payment or the proceeds of such enforcement or setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Agents, the Arrangers, such L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor or related thereto, shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the applicable OvernightNYFRB Rate from time to time in effect, in the applicable currency of such recovery or payment. The obligations of the Lenders and L/C Issuers under clause (b) of the preceding sentence shall survive Payment in Full and the termination of this Agreement.
10.06    Successors and Assigns.
(a)    Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that no Loan Party may assign or otherwise transfer any of its rights or obligations hereunder, except through a transaction permitted hereunder, without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Agents, the Arrangers, the L/C Issuers and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b)    Assignments by Lenders. Any Lender may at any time sell, assign or transfer to one or more Eligible Assignees, upon the giving of notice to the Borrower and the Administrative Agent, all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans (including for purposes of this subsection (b), participations in L/C Obligations) at the time owing to it or other Obligations); provided that:
(i)    except (a) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it, which such amount is less than the applicable minimum transfer amount set forth below, or (b) in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding

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balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less $2,500,000 in the case of Incremental Revolving Commitments or Incremental Revolving Loans and shall not be less than $1,000,000100,000 in the case of Term Loan Commitments or Term Loans, unless each of the Administrative Agent and, so long as no Event of Default under Section 8.01(a), (f) or (g) has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); provided that the Borrower shall be deemed to have consented to an assignment unless it shall have objected thereto by written notice to the Administrative Agent within sevenfive (75) Business Days after having received notice thereof; provided, however, that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met; provided, further, that no assignment of Revolving Commitments or Revolving Loans shall be made without the prior written consent (such consent not to be unreasonably withheld or delayed) of the L/C Issuers;
(ii)    each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned;
(iii)    the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500 (provided however, that (i) the Administrative Agent may in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment and (ii) the Administrative Agent does hereby waive such processing and recordation fee in connection with an assignment by or to Goldman SachsJPMorgan Chase Bank USA, N.A. or any Affiliate thereof or in the case of an assignee which is already a Lender or is an affiliate or Approved Fund of a Lender or a Person under common management with a Lender) and the Eligible Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire and such forms, certificate or other evidence, if any, as the assignee under such Assignment and Assumption may be required to deliver pursuant to Section 3.01; and
(iv)    pro rata assignments shall not be required and each assignment shall be of a uniform, and not varying, percentage of all rights and obligations under and in respect of any applicable Loan and related Commitments.
Subject to acceptance and recording thereof in the Register by the Administrative Agent pursuant to subsection (c) of this Section, from and after the closing date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall

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cease to be a party hereto) but shall continue to be entitled to the benefits of Section 3.01 (subject to the requirements and limitations therein, including the requirements of Section 3.01(e)), 3.04, 3.05 and 10.04 with respect to facts and circumstances occurring prior to the closing date of such assignment. Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section.
In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the Assignment and Assumption shall make such additional payments to Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations, or other compensating actions, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full Applicable Percentage of all Loans. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Each Lender, upon execution and delivery hereof or upon succeeding to an interest in the Commitments and Loans, as the case may be, represents and warrants as of the Closing Date or as of the effective date of such Assignment and Assumption that (i) it is an Eligible Assignee; (ii) it has experience and expertise in the making of or investing in commitments or loans such as the applicable Commitments or Loans, as the case may be and (iii) it will make or invest in, as the case may be, its Commitments or Loans for its own account in the ordinary course and without a view to distribution of such Commitments or Loans within the meaning of the Securities Act or the Exchange Act or other federal securities laws (it being understood that, subject to the provisions of this Section 10.06, the disposition of such Commitments or Loans or any interests therein shall at all times remain within its exclusive control).
(c)    Register. The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of (and stated interest on) the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). The Register shall be

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available for inspection by the Borrower and the L/C Issuers at any reasonable time and from time to time upon reasonable prior notice.
(d)    Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender, to the extent that it has a consent right hereunder, will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in clauses (a), (b), (c), (g) and (h) of the first proviso to Section 10.01 that affects such Participant (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Commitment shall not constitute a change in the terms of such participation, and that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant’s participation is not increased as a result thereof). Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Section 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment, provided, that in the case of Section 3.01, such Participant shall have complied with the requirements of such section (it being understood that the documentation required under Section 3.01(e) shall be delivered to the participating Lender). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; such Participant agrees to be subject to Section 2.13 as though it were a Lender.
Each Lender that sells a participation, acting for this purpose as a non-fiduciary agent (solely for tax purposes) of the Borrower, shall maintain a register for the recordation of the names and addresses of the Participants and principal amount of (and stated interest on) each Participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that the relevant parties, acting reasonably and in good faith, determine that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Treasury Regulations Section 5f.103-1(c) of the United Statesand Proposed Treasury Regulations Section 1.163-5(b) (or any amended or successor version). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender and each Loan Party shall treat each Person whose name is recorded in the Participant Register pursuant to the terms hereof

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as the owner of such participation for all purposes of this Agreement, notwithstanding notice to the contrary.
(e)    Limitation upon Participant Rights. A Participant shall not be entitled to receive any greater payment under Section 3.01, 3.04 or 3.05 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. No Participant shall be entitled to the benefits of Section 3.01 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 3.01(e) as though it were a Lender.
(f)    Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note(s), if any) to secure obligations of such Lender to secure obligations to a Federal Reserve Bank or other central bank having jurisdiction over such Lender; 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; provided further, that in no event shall the applicable Federal Reserve Bank, pledgee or trustee, be considered to be a “Lender” or be entitled to require the assigning Lender to take or omit to take any action hereunder.
(g)    Electronic Execution of Assignments. The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state Laws based on the Uniform Electronic Transactions Act.
(h)    Resignation as L/C Issuer. Notwithstanding anything to the contrary contained herein, any L/C Issuer may, upon (A) 30 days’ notice to the Borrower and the Lenders (or such shorter time as the applicable resigning L/C Issuer, successor L/C Issuer, Borrower and Administrative Agent may agree) and (B) the appointment of a successor L/C Issuer and satisfaction of the requirements of the penultimate sentence of this Section 10.06(h), resign as L/C Issuer. In the event of notice of any such resignation as L/C Issuer, the Borrower shall be entitled to appoint from among the Incremental Revolving Lenders (or a Person who will become an Incrementala Revolving Lender) and their Affiliates a successor L/C Issuer who agrees to assume all such rights, powers, privileges and duties of the resigning L/C Issuer, including with respect to its L/C Issuance Limit; provided, however, that no failure by the Borrower to appoint any such successor shall affect the resignation of such L/C Issuer if the resigning L/C Issuer finds a replacement L/C Issuer that is an Eligible L/C Issuer or, if not an Eligible L/C Issuer, that is reasonably acceptable to the Borrower (such acceptance not to be unreasonably withheld or delayed) who agrees to assume all such rights, powers, privileges and duties of the resigning L/C Issuer, including with respect to its L/C Issuance Limit). If an L/C Issuer resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of an L/C Issuer hereunder with respect to Letters of Credit and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Loans, fund risk participations in

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Unreimbursed Amounts pursuant to Section 2.03(c) and issue Letters of Credit pursuant to Section 2.03). Upon the appointment of a successor L/C Issuer, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the resigning L/C Issuer, including with respect to its L/C Issuance Limit, (b) the resigning L/C Issuer shall be discharged from all of its respective duties and obligations hereunder or under the other Loan Documents, in its capacity as an L/C Issuer, and (c) the successor L/C Issuer shall issue Letters of Credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements reasonably satisfactory to the resigning L/C Issuer and the Borrower (such acceptance not to unreasonably withheld or delayed) to effectively assume the obligations of such L/C Issuer with respect to such Letters of Credit. In lieu of the appointment of a successor L/C Issuer pursuant to this Section 10.06(h), the Borrower may appoint one or more successor L/C Issuers to satisfy the requirements of this Section 10.06(h).
(i)    Notwithstanding any other provision in the Loan Documents, any Lender may, at any time, assign all or a portion of its rights and obligations with respect to Term Loans, Incremental Term Loans and Refinancing Term Loans under this Agreement to the Borrower through Dutch auctions in accordance with Section 2.19 and open market purchases in accordance with Section 2.20.
10.07    Treatment of Certain Information; Confidentiality. Each of the Agents, Arrangers, the Lenders and L/C Issuers agrees that it will treat as confidential (to the extent clearly identified at the time of delivery as confidential) all information provided to it hereunder or under any other Loan Document by or on behalf of the Borrower or any of its Subsidiaries or Affiliates (collectively, “Information”) in accordance with the Agents’, Arrangers’, the Lenders’ and the L/C Issuers’ applicable customary procedures for handling confidential information of such nature, except to the extent such Information (a) is publicly available or becomes publicly available other than by reason of disclosure by the Agents, Arrangers, the Lenders or the L/C Issuers, any of their respective affiliates or representatives in violation of this Agreement or the other Loan Documents, (b) was received by the Agents, Arrangers, the Lenders or the L/C Issuers from a source (other than the Borrower or any of its affiliates, advisors, members, directors, employees, agents or other representatives) not known by the Agents, Arrangers, the Lenders and the L/C Issuers to be prohibited from disclosing such Information to such Person by a legal, contractual or fiduciary obligation to the Borrower and (c) was already in the Agents’, Arrangers’, the Lenders’ and the L/C Issuers’ possession from a source other than the Borrower or any of its affiliates, advisors, members, directors, employees, agents or other representatives or is independently developed by such Person without the use of or reference to any such Information; provided, however, that nothing herein will prevent the Agents, Arrangers, the Lenders and the L/C Issuers from disclosing any such Information (including Information regarding Disqualified Institutions) (a) pursuant to the order of any court or administrative agency or in any pending legal or administrative proceeding, or otherwise as required by applicable Law or compulsory legal process (in which case such Person agrees to inform the Borrower promptly thereof to the extent not prohibited by law), (b) upon the request or demand of any regulatory authority or any self-regulatory authority having jurisdiction over such Person or any of its affiliates, (c) to such Person’s affiliates and their respective officers, directors, partners, members, employees, legal counsel, independent auditors and other experts or agents who need to know such Information and on a confidential basis, (d) to potential and prospective Lenders,

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assignees, participants and any direct or indirect contractual counterparties to any Hedging Agreementswap or derivative transaction relating to the Borrower orand its obligations under this Agreement (other than Disqualified Institutions), in each case, subject to such recipient’s agreement (which agreement may be in writing or by “click through” agreement or other affirmative action on the part of the recipient to access such Information and acknowledge its confidentiality obligations in respect thereof pursuant to customary syndication practice) to keep such Information confidential on substantially the terms set forth in this Section 10.07, (e) to ratings agencies who have agreed to keep such Information confidential on terms no less restrictive than this Section 10.07 in any material respect or otherwise on terms acceptable to the Borrower in connection with obtaining ratings of the Term Loans, (f) for purposes of establishing a “due diligence” defense, (g) on a confidential basis, to the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Loans or (h) disclosures 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. In addition, the Agents may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry, and service providers to the Agents in connection with the administration and management of this Agreement and the other Loan Documents.
Each of the Agents, the Arrangers, the Lenders and the L/C Issuers acknowledges that (a) the Information may include material non-public information concerning the Borrower or a Subsidiary, the Loan Parties and their Related Parties or their respective securities, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with those procedures and applicable Laws, including Federal and state securities laws. All information, including requests for waivers and amendments, furnished by the Borrower or the Administrative Agent pursuant to, or in the course of administering, this Agreement will be syndicate-level information, which may contain material non-public information concerning the Borrower, the Loan Parties and their Related Parties or their respective securities. Accordingly, each Lender represents to the Borrower and the Administrative Agent that it has identified in its Administrative Questionnaire a credit contact who may receive information that may contain material non-public information in accordance with its compliance procedures and applicable Laws, including Federal and state securities laws.
10.08    Right of Setoff. In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, upon the occurrence of any Event of Default or at maturity each Lender and L/C Issuer is hereby authorized by each Loan Party at any time or from time to time subject to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed), without notice to any Loan Party or to any other Person (other than the Administrative Agent), any such notice being hereby expressly waived, to set off and to appropriate and to apply any and all deposits (general or special, including Indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including trust accounts) and any other Indebtedness at any time held or owing by such Lender or L/C Issuer to or for the credit or the account of any Loan Party against and on account of the obligations and liabilities of any Loan Party to such Lender or L/C Issuer hereunder, including all claims of any nature or description arising out

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of or connected hereto, irrespective of whether or not (a) such Lender or L/C Issuer shall have made any demand hereunder or (b) the principal of or the interest on the Loans or any other amounts due hereunder shall have become due and payable pursuant to Article II and although such obligations and liabilities, or any of them, may be contingent or unmatured; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Sections 2.18 and 8.04 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 Administrative Agent, the Lenders and the L/C Issuers, and (y) 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 setoff. The rights of each Lender, L/C Issuer and their respective Affiliates under this Section 10.08 are in addition to other rights and remedies (including other rights of setoff) that such Lender or L/C Issuer or their respective Affiliates may have. Each Lender and L/C Issuer agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.
10.09    Usury Savings Clause. Notwithstanding any other provision herein, the aggregate interest rate charged with respect to any of the Obligations, including all charges or fees in connection therewith deemed in the nature of interest under applicable law shall not exceed the Highest Lawful Rate. If the rate of interest (determined without regard to the preceding sentence) under this Agreement at any time exceeds the Highest Lawful Rate, the outstanding amount of the Loans made hereunder shall bear interest at the Highest Lawful Rate until the total amount of interest due hereunder equals the amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect. In addition, if when the Loans made hereunder are repaid in full the total interest due hereunder (taking into account the increase provided for above) is less than the total amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect, then to the extent permitted by law, the Borrower shall pay to the Administrative Agent an amount equal to the difference between the amount of interest paid and the amount of interest which would have been paid if the Highest Lawful Rate had at all times been in effect. Notwithstanding the foregoing, it is the intention of Lenders and the Borrower to conform strictly to any applicable usury laws. Accordingly, if any Lender contracts for, charges, or receives any consideration which constitutes interest in excess of the Highest Lawful Rate, then any such excess shall be cancelled automatically and, if previously paid, shall at such Lender’s option be applied to the outstanding amount of the Loans made hereunder or be refunded to the Borrower.
10.10    Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof; provided that the provisions contained in the Fee Letters and that certain CommitmentEngagement Letter dated January 11, 2017,September 4, 2019 by and

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among Goldman Sachs Bank USA, JPMorgan Chase Bank, N.A., Credit Suisse Securities (USA) LLC, Credit Suisse AG, Cayman Islands Branch, Macquarie Capital (USA) Inc., Macquarie Capital Funding LLCGoldman Sachs Bank USA, BMO Capital Markets Corp., Credit Suisse Loan Funding LLC, Deutsche Bank Securities Inc., Regions Capital Markets, BofA Securities, Inc. and Peabody Energy Corporation which by their terms survive the execution and effectiveness of this Agreement and the other Loan Documents shall survive and not be superseded by this Agreement and the other Loan Documents. Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging means (i.e., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.
10.11    Survival of Representations, Warranties and Agreements. All representations, warranties and agreements made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof and the funding of any Borrowing. Such representations, warranties and agreements have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding. Notwithstanding anything herein or implied by law to the contrary, the agreements of each Loan Party set forth in Sections 3.01, 3.04, 3.05, 10.04(a), 10.04(b) and 10.08 and the agreements of Lenders set forth in Sections 2.13, 9.03 and 10.04(c) shall survive the payment of the Loans and the termination hereof.
10.12    Severability. If any provision of this Agreement or the other Loan Documents or any obligation hereunder or under any other Loan Document is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions or obligations of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions or obligations with valid provisions or obligations the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions or obligations. The invalidity of a provision or obligation in a particular jurisdiction shall not invalidate or render unenforceable such provision or obligation in any other jurisdiction.
10.13    Replacement of Lenders. If (a) any Lender requests compensation under Section 3.04, (b) the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, (c) any Lender is at such time a Defaulting Lender or has given notice pursuant to Section 3.02 or (d) any Lender becomes a “Nonconsenting Lender” (hereinafter defined), then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to (and such Lender shall) assign and delegate, without recourse (in

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accordance with and subject to the restrictions contained in, and consents required by, Section 10.06), all of its interest, rights and obligations under this Agreement and the related Loan Documents to an assignee selected by the Borrower that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:
(a)    the Administrative Agent shall have received the assignment fee specified in Section 10.06(b) (provided however, that the Administrative Agent may in its sole discretion elect to waive such processing and recordation fee in the case of any assignment);
(b)    such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);
(c)    in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter;
(d)    such assignment does not conflict with applicable Laws, and
(e)    neither the Administrative Agent nor any Lender shall be obligated to be or to find the assignee.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply. In the event that (x) the Borrower or the Administrative Agent has requested the Lenders to consent to a departure or waiver of any provisions of the Loan Documents or to agree to any amendment thereto and (y) the Required Lenders, Required Revolving Lenders or Required Facility Lenders, as applicable, have agreed to such consent, waiver or amendment, then any such Lender, who does not agree to such consent, waiver or amendment and whose consent would otherwise be required for such departure, waiver or amendment, shall be deemed a “Nonconsenting Lender.” Any such replacement shall not be deemed a waiver of any rights that the Borrower shall have against the replaced Lender.
Each Lender agrees that if the Borrower exercises its option hereunder to cause an assignment by such Lender as a Nonconsenting Lender or otherwise pursuant to this Section 10.13, such Lender shall, promptly after receipt of written notice of such election, execute and deliver all documentation necessary to effectuate such assignment in accordance with Section 10.06. In the event that a Lender does not comply with the requirements of the immediately preceding sentence within one Business Day after receipt of such notice, each Lender hereby authorizes and directs the Administrative Agent to execute and deliver such documentation as may be required to give effect to an assignment in accordance with Section 10.06 on behalf of a Nonconsenting Lender or Lender replaced pursuant to this Section 10.13, and any such documentation so executed by the Administrative Agent shall be effective for purposes of documenting an assignment pursuant to Section 10.06.

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10.14    Governing Law; Jurisdiction; Etc.
(a)    GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.
(b)    CONSENT TO JURISDICTION. SUBJECT TO CLAUSE (E) OF THE FOLLOWING SENTENCE, ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT OF OR RELATING HERETO OR ANY OTHER LOAN DOCUMENTS, OR ANY OF THE OBLIGATIONS, SHALL BE BROUGHT IN ANY FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN THE BOROUGH OF MANHATTAN OR, IF THAT COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, IN ANY STATE COURT LOCATED IN THE CITY AND COUNTY OF NEW YORK.  BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH LOAN PARTY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE (SUBJECT TO CLAUSE (E) BELOW) JURISDICTION AND VENUE OF SUCH COURTS; (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE LOAN PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 10.02; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE LOAN PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES THAT THE AGENTS, ARRANGERS, COLLATERAL TRUSTEE AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY LOAN PARTY IN THE COURTS OF ANY OTHER JURISDICTION IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER ANY LOAN DOCUMENT OR AGAINST ANY COLLATERAL OR THE ENFORCEMENT OF ANY JUDGMENT, AND HEREBY SUBMITS TO THE JURISDICTION OF, AND CONSENTS TO VENUE IN, ANY SUCH COURT.
10.15    Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY

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AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 10.15 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
10.16    USA PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies each Loan Party that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of such Loan Party, a Beneficial Ownership Certification and other information that will allow such Lender or the Administrative Agent, as applicable, to identify such Loan Party in accordance with the Act.
10.17    Time of the Essence. Time is of the essence of the Loan Documents.

10.18    [Reserved].
10.19    No Advisory or Fiduciary Responsibility. Each Loan Party agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Agent, Arranger, Lender or L/C Issuer, on the one hand, and such Loan Party, its stockholders or its affiliates, on the other. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by the Agents and the Arrangers and the transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and

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thereunder) are arm’s-length commercial transactions between the Borrower and their Affiliates, on the one hand, and the Agents and the Arrangers, on the other hand, (B) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) each Agent, each Arranger, each Lender and each L/C Issuer is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for any Loan Party, its management, stockholders, creditors or any of its affiliates or any other Person with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Lender has advised, is currently advising or will advise any Loan Party, its stockholders or its Affiliates on other matters) or any other obligation to any Loan Party except the obligations expressly set forth in the Loan Documents and (B) neither any of the Agents nor any of the Arrangers nor any Lender nor any L/C Issuer has any obligation to the Borrower or any of its respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Agents and the Arrangers and the Lenders and the L/C Issuers and their respective Affiliates may be engaged in a broad range of transactions that involve interests that conflict with those of the Borrower and its respective Affiliates, and neither any of the Agents nor any of the Arrangers has any obligation to disclose any of such interests to the Borrower or its respective Affiliates. Each Loan Party agrees that it will not claim that any Lender has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to such Loan Party, in connection with such transaction or the process leading thereto. To the fullest extent permitted by law, the Borrower hereby waives and releases any claims that it may have against the Agents and the Arrangers with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
10.20    [Reserved]
10.21    Release of Liens and Release from Guaranty.
(a)    The Collateral Trust Agreement shall govern the release of security interests in Collateral as security for the Secured Obligations (A) after Payment in Full and the termination or expiration of all Secured Hedging Agreements (other than obligations and liabilities under Secured Hedging Agreements that have been cash collateralized or as to which other arrangements reasonably satisfactory to the applicable counterparties shall have been made) and payment of any obligations due and owing under all Secured Hedging Agreements, (B) upon any sale or other transfer by any Loan Party of any Collateral that is permitted under this Agreement (other than a sale or other transfer to a Loan Party) or upon effectiveness of any written direction by the consent to the release of the security interest created under any Security Document in any Collateral pursuant to Section 10.01, (C) upon a designation of a Restricted Subsidiary as an Unrestricted Subsidiary permitted hereunder, with respect to the Collateral owned by such Unrestricted Subsidiary, (D) upon the approval, authorization or ratification in writing by the Required Lenders (or such other percentage of the Lenders whose consent is required by Section 10.01) with respect to the release of such Collateral and (E) upon a Guarantor no longer being a

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Guarantor by virtue of the definition thereof or a transaction permitted hereunder, with respect to the Collateral owned by such Guarantor. After either (v) Payment in Full and the termination or expiration of all Secured Hedging Agreements (other than obligations and liabilities under Secured Hedging Agreements that have been cash collateralized or as to which other arrangements reasonably satisfactory to the applicable counterparties shall have been made) and payment of any obligations due and owing under all Secured Hedging Agreements, (w) upon any sale or other transfer of a Loan Parry that is permitted under this Agreement (other than a sale or other transfer to a Loan Party), (x) upon a designation of a Restricted Subsidiary as an Unrestricted Subsidiary permitted hereunder, (y) upon the approval, authorization or ratification in writing by the Required Lenders (or such other percentage of the Lenders whose consent is required by Section 10.01) with respect to the release of any Guarantor under the terms of the Guaranty or (z) upon a Guarantor no longer being a Guarantor by virtue of the definition thereof or a transaction permitted hereunder, each applicable Guarantor (or, in the case of clause (w) above, the applicable Guarantor so sold or transferred) shall automatically be released from the Guaranty, all without delivery of any instrument or performance of any act by any Person; provided that any such release of guarantee obligations shall be deemed subject to the provision that such guarantee obligations shall be reinstated if after such release any portion of any payment in respect of the Obligations guaranteed thereby shall be rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Borrower or any Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Borrower or any Guarantor or any substantial part of its property, or otherwise, all as though such payment had not been made.
(b)    Notwithstanding anything to the contrary contained herein or in any other Loan Document, in connection with any termination or release pursuant to this Section 10.21, the Administrative Agent and/or Collateral Trustee shall be, and are hereby irrevocably authorized by each Lender (without requirement of notice to or consent of any Lender) to execute and deliver, and shall promptly execute and deliver to the applicable Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence such termination or release (including (1) UCC termination statements and (2) in the case of a release of Mortgages, a partial release) and return to the Borrower, the possessory Collateral that is in the possession of the Collateral Trustee and is the subject of such release.
(c)    Any execution and delivery of documents, or the taking of any other action, by the Administrative Agent and/or Collateral Trustee pursuant to this Section 10.21 shall be without recourse to or warranty by the Administrative Agent or Collateral Trustee.
10.22    Independence of Covenants. 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 would otherwise be within the limitations of, another covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists.
10.23    Independent Nature of Lenders’ Rights. Nothing contained herein or in any other Loan Document, and no action taken by Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a partnership, an association, a joint venture or any other kind of entity. The amounts payable at any time hereunder to each Lender shall be a separate

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and independent debt, and each Lender shall be entitled to protect and enforce its rights arising out hereof and it shall not be necessary for any other Lender to be joined as an additional party in any proceeding for such purpose.
10.24    Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a)    the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
(b)    the effects of any Bail-in Action on any such liability, including, if applicable:
(i)    a reduction in full or in part or cancellation of any such liability;
(ii)    a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii)    the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.
10.25    Original Issue Discount. THE TERM LOANS MAY BE TREATED AS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO MATURITY OF THE LOANS MAY BE OBTAINED BY WRITING TO THE BORROWER AT ITS ADDRESS SPECIFIED HEREIN.
10.26    Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Hedging Agreements or any other agreement or instrument that is a QFC (such support “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):

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In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.

[Signature pages follow]
As used in this Section 10.26, the following terms have the following meanings:

(a)    “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
(b)    “Covered Entity” means any of the following:
(i)    a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii)    a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii)    a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
(c)    “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
(d)    “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).

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[Include each Schedule to be updated as of the Seventh Amendment Effective Date]










Schedule 1.01(a)
to Credit Agreement


GUARANTORS
American Land Development, LLC
American Land Holdings of Colorado, LLC
American Land Holdings of Illinois, LLC
American Land Holdings of Indiana, LLC
American Land Holdings of Kentucky, LLC
Big Ridge, Inc.
BIG SKY COAL COMPANY
BTU WESTERN RESOURCES, INC.
COALSALES II, LLC
Conservancy Resources, LLC
El Segundo Coal Company, LLC
Hayden Gulch Terminal, LLC
Hillside Recreational Lands, LLC
KAYENTA MOBILE HOME PARK, INC.
Kentucky United Coal, LLC
Moffat County Mining, LLC
New Mexico Coal Resources, LLC
NGS Acquisition Corp., LLC
Peabody America, LLC
Peabody Arclar Mining, LLC
Peabody Asset Holdings, LLC
Peabody Bear Run Mining, LLC
Peabody Bear Run Services, LLC
Peabody Caballo Mining, LLC
Peabody Cardinal Gasification, LLC
Peabody China, LLC
Peabody COALSALES, LLC
Peabody COALTRADE, LLC
Peabody Colorado Operations, LLC
Peabody Colorado Services, LLC
Peabody Coulterville Mining, LLC
PEABODY DEVELOPMENT COMPANY, LLC
Peabody Electricity, LLC
Peabody Employment Services, LLC
Peabody Energy Corporation
PEABODY GATEWAY NORTH MINING, LLC
Peabody Gateway Services, LLC
Peabody Global Funding, LLC





PEABODY HOLDING COMPANY, LLC
Peabody IC Funding Corp.
Peabody Illinois Services, LLC
Peabody Indiana Services, LLC
Peabody International Holdings, LLC
Peabody International Investments, Inc.
Peabody International Services, Inc.
Peabody Investments Corp.
Peabody Midwest Management Services, LLC
PEABODY MIDWEST MINING, LLC
Peabody Midwest Operations, LLC
Peabody Midwest Services, LLC
Peabody Mongolia, LLC
Peabody Natural Gas, LLC
Peabody Natural Resources Company
Peabody New Mexico Services, LLC
Peabody Operations Holding, LLC
Peabody Powder River Mining, LLC
Peabody Powder River Operations, LLC
Peabody Powder River Services, LLC
Peabody Rocky Mountain Management Services, LLC
Peabody Rocky Mountain Services, LLC
Peabody Sage Creek Mining, LLC
Peabody School Creek Mining, LLC
Peabody Services Holdings, LLC
Peabody Southeast Mining, LLC
Peabody Twentymile Mining, LLC
PEABODY VENEZUELA COAL CORP.
Peabody Venture Fund, LLC
PEABODY WESTERN COAL COMPANY
Peabody Wild Boar Mining, LLC
Peabody Wild Boar Services, LLC
Peabody Williams Fork Mining, LLC
Peabody Wyoming Services, LLC
Peabody-Waterside Development, L.L.C.
PEC Equipment Company, LLC
SAGE CREEK HOLDINGS, LLC
Sage Creek Land & Reserves, LLC
Seneca Coal Company, LLC
Seneca Property, LLC
Shoshone Coal Corporation
TWENTYMILE COAL, LLC
United Minerals Company, LLC





Schedule 1.01(b)
to Credit Agreement


UNRESTRICTED SUBSIDIARIES

Middlemount Coal Pty Ltd
Middlemount Mine Management Pty Ltd
Newhall Funding Company (MBT)
P&L Receivables Company, LLC
Ribfield Pty. Ltd
Sterling Centennial Missouri Insurance Corporation
PRB-CO JV, LLC







Schedule 1.01(c)
to Credit Agreement


EXCLUDED EQUITY INTERESTS
None.








Schedule 1.01(d)
to Credit Agreement


REAL PROPERTY MARKETED FOR SALE

Illinois
 
 
Tract
County
Acres (Approximate)
McDonough County-Tract 5
McDonough
76
McDonough County-Tract 5A
McDonough
40
McDonough County-Tract 21
McDonough
44
Saline County-Tract 21
Saline
119
Saline County-Tract 23
Saline
81
Saline County-Tract 24
Saline
109
Saline County-Tract 26
Saline
80
Saline County-Tract 27
Saline
80
Saline County-WH Rail Loop
Saline
170
Saline County-CG RBW #11A
Saline
5
Gallatin County – Tract 13
Gallatin
43
Gallatin County – Tract 3
Gallatin
600
Gallatin County – Tract 4
Gallatin
630
Gallatin County – Tract 5
Gallatin
188
Gallatin County – Tract 6C
Gallatin
139
Gallatin County – Tract 7
Gallatin
115
Gallatin County – Tract 10A
Gallatin
198
Gallatin County – Tract 10B
Gallatin
94
Gallatin County – Tract 11A
Gallatin
165
Gallatin County – Tract 11B
Gallatin
125
Gallatin County – Tract 11C
Gallatin
138
Gallatin County – Tract 12A
Gallatin
213
Gallatin County – Tract 12B
Gallatin
96
Gallatin County – Tract 25
Gallatin
55
Gallatin County – Tract 26
Gallatin
40
 
Total
3,643
 
 
 
Indiana:
 
 
Tract
County
Acres (Approximate)
Clay County-Tract 3
Clay
49
Daviess County-Tract 1
Daviess
88
Daviess County-Tract 2
Daviess
8
Daviess County-Tract 4
Daviess
41
Daviess County-Tract 5
Daviess
157





Daviess County-Tract 12
Daviess
501
Greene County-Tract 26A
Greene
158
Greene County-Tract 26B
Greene
191
Greene County-Tract 28
Greene
120
Greene County-Tract 29
Greene
170
Greene County-Tract 30
Greene
200
Greene County-Tract 31
Greene
272
Greene County-Tract 1
Greene
1
Greene County-Tract 2A
Greene
31
Greene County-Tract 2B
Greene
1
Greene County-Tract 2C
Greene
5
Greene County-Tract 4
Greene
30
Greene County-Tract 6
Greene
2
Greene County-Tract 7
Greene
164
Greene County-Tract 9
Greene
8
Greene County-Tract 10
Greene
3
Greene County-Tract 13
Greene
32
Knox County-Tract 8
Knox
402
Knox County-Tract 11
Knox
211
Knox County-Tract 14
Knox
101
Knox County-Tract 21
Knox
103
Knox County-Tract 22
Knox
52
Knox County-Tract 23
Knox
125
Knox County-Tract 50
Knox
0
Knox County-Tract 55
Knox
48
Vigo County-Tract RR 3
Vigo
32
Vigo County-Tract RR 4
Vigo
2
Vigo County-Tract RR 5
Vigo
10
Vigo County-Tract 5
Vigo
27
Vigo County-Tract 7
Vigo
9
Vigo County-Tract 8
Vigo
199
Vigo County-Tract 11
Vigo
1
Vigo County-Tract 17
Vigo
8
Sullivan County-Tract 1
Sullivan
1
Sullivan County-Tract 2
Sullivan
7
Sullivan County-Tract 8
Sullivan
20
Sullivan County-Tract 16
Sullivan
429
Sullivan County-Tract 17
Sullivan
1,247
Sullivan County-Tract 19
Sullivan
655
Sullivan County-Tract 20
Sullivan
575
Sullivan County-Tract 22
Sullivan
1,351
Sullivan County-Tract 23
Sullivan
37





Sullivan County-Tract 24
Sullivan
140
Sullivan County-Tract 26
Sullivan
111
Sullivan County-Tract 27A
Sullivan
75
Sullivan County-Tract 28A
Sullivan
29
Sullivan County-Tract 34
Sullivan
40
Sullivan County-Tract 36
Sullivan
146
Sullivan County-Tract 40
Sullivan
20
Sullivan County-Tract 44
Sullivan
34
Sullivan County-Tract 45
Sullivan
4
Sullivan County-Tract 46
Sullivan
1
Sullivan County-Tract 47
Sullivan
81
Sullivan County-Tract 52
Sullivan
15
Sullivan County-Tract 54
Sullivan
99
Sullivan County-Tract 55
Sullivan
141
Sullivan County-Tract 56
Sullivan
157
Sullivan County-Tract 59B
Sullivan
152
Sullivan County-Tract 60
Sullivan
441
Sullivan County-Tract 61
Sullivan
26
Sullivan County-Tract 62
Sullivan
295
Sullivan County-Tract 63
Sullivan
243
Sullivan County-Tract 64A
Sullivan
16
Sullivan County-Tract 66
Sullivan
97
Sullivan County-Tract 68
Sullivan
158
Sullivan County-Tract 70
Sullivan
35
Sullivan County-Tract 71
Sullivan
208
Sullivan County-Tract 72
Sullivan
99
Sullivan County-Tract 73
Sullivan
96
Sullivan County-Tract 74
Sullivan
28
Sullivan County-Tract 75
Sullivan
11
Sullivan County-Tract 78
Sullivan
10
Sullivan County-Tract 79
Sullivan
115
Warrick County-Tract 1
Warrick
163
Warrick County-Tract 4
Warrick
713
Warrick County-Tract 5
Warrick
163
Warrick County-Tract 8
Warrick
191
Warrick County-Tract 9
Warrick
240
Warrick County-Tract 10
Warrick
156
Warrick County-Tract 11
Warrick
40
Warrick County-Tract 12
Warrick
527
Warrick County-Tract 13
Warrick
122
Warrick County-Tract 14
Warrick
410
Warrick County-Tract 15
Warrick
323





Warrick County-Tract 16
Warrick
41
Warrick County-Tract 18
Warrick
130
Warrick County-Tract 19
Warrick
101
Warrick County-Tract 31
Warrick
1
Gibson County – Tract 8
Gibson
39
Gibson County – Tract 9
Gibson
70
Gibson County – Tract 10
Gibson
27
Gibson County – Tract 11
Gibson
15
 
Total
14,479
 
 
 
 
 
 
Kentucky:
 
 
Tract
County
Acres (Approximate)
Ohio County- TR 1 Centertown
Ohio
394
Ohio County-TR 2 Smallhaus
Ohio
390
 
Total
784
 
 
 
Colorado:
 
 
Tract
County
Acres (Approximate)
Grandbouche Ranch
Routt
975
North Grandbouche Ranch
Routt
182
Fish Creek West Fork
Routt
2,973
Fish Creek East Fork
Routt
1,284
Fish Creek East (S of RR)
Routt
179
Eckman Park Ranch
Routt
4,005
Eckman Park Ranch East
Routt
830
Ranch 37 Property
Routt
628
West Trout Creek
Routt
1,399
RC-53 Tract #3
Routt
60
Hayden Dev Tract #1
Routt
5
Hayden Dev Tract #2
Routt
3
Hayden Dev Tract #3
Routt
4
Hayden Dev Tract #4
Routt
5
Hayden Dev Tract #5
Routt
12
Power Ranch
Routt
73
Water Tower Ranch
Routt
137
Loop ranch
Routt
168
Runway Ranch
Routt
125
South Highway Ranch
Routt
42
North Highway Ranch
Routt
24
Ranch 51
Routt
80
North Elk Ranch
Routt
147
Vista Ridge Lot #15
Routt
36





Vista Ridge Lot #16
Routt
36
Vista Ridge Lot #17
Routt
37
Vista Ridge Lot #19
Routt
42
 
Total
13,491



























Schedule 1.01(e)
to Credit Agreement
RESERVE AREAS
RESERVE AREA
State
AIR QUALITY, 1620
Indiana
AREA SOUTH OF MINE No.17, 1314
Illinois
ASHLAND AREA, 1266
Montana
ATHENS NO 4 MENARD CO. - IL., 1197
Illinois
AUBURN SAGAMON CO., IL, 1450
Illinois
BELLEVILLE UNDERGROUND – CARLYLE, 1310
Illinois
BELLEVILLE UNDERGROUND – ELKTON, 1310
Illinois
BELLEVILLE UNDERGROUND – SWANWICK, 1310
Illinois
BEN HUR, 1232
Oklahoma
BIG ELK, 1226
Colorado
BOND COUNTY AREA, 1315
Illinois
BROUILLETTS, 1534
Indiana
BUCK CREEK, 1586
Illinois
BUFFALO, 0886
Wyoming
CANON CITY, 2794
Colorado
CARMI NORTH, 1121
Illinois
CRAWFORD COUNTY, KS, 2796
Kansas
DALE MINE WILLIAMSON CO.-IL., 1198
Illinois
DANVILLE, 1170
Illinois
DIVERNON UNDERGROUND, 1312
Illinois
DIVIDE, 2788
New Mexico
DIXON-MANITOU, 1424
Kentucky
DRY CREEK UNDERGROUND, 0314
Colorado
EAGLE #3 AREA, 1991
Illinois
EAGLE U/G #1, 1271
Illinois
EDEN SURFACE, 1166
Illinois
EMPIRE, 2003
Colorado
FARMERSBURG, 1642
Indiana
FAYETTEVILLE AREA U.G. - IL., 0193
Illinois
FRANCISCO SURFACE, 1632
Illinois
FULTON COUNTY - FULTON CO IL, 1199
Illinois
GALLO WASH, 2792
New Mexico
GILLESPIE, 1182
Illinois
GIRARD, 1587
Illinois
GLASFORD (UG & Surface IL, 1321
Illinois
GRASSY CREEK, 1523
Illinois
GREENFIELD, 1162
Illinois
HENDERSON AREA KY, 1137
Kentucky
HYMERA, 1680
Indiana
KASKASKIA #1 FAYETTEVILLE IL, 1272
Illinois
KAYENTA MINE AZ, 0252
Arizona





LATTA BBCC, 1675
Indiana
LEON, 2798
New Mexico
MADISON COUNTY, 1595
Illinois
MCKINLEY, 2790
New Mexico
MILLER CREEK / JENLIN, 1638
Indiana
MILLER CREEK NE EEL MINE, 1657
Indiana
MILLER CREEK-KNOX PIT, 1633
Indiana
MINE #11 - CLEAR CREEK, 1011
Illinois
MINE #12 - JOHNSON CITY IL., 1912
Illinois
MINE #16, 1300
Illinois
MINE #18, 1918
Illinois
MINE #21 - STONINGTON IL., 1921
Illinois
MINE #25, 1114
Illinois
MINE #26 - WILLIAMSON CO IL., 1115
Illinois
MINE #3 (WILLIAMSON) - IL., 1113
Illinois
MINE #54 - AUBURN IL., 1954
Illinois
MT. HARRIS (SENECA U.G.) CO, 0261
Colorado
MUHLENBERG COUNTY AREA, 1542
Kentucky
NAVAJO RANCH, 2795
New Mexico
NILWOOD #1-MACOUPIN CNTY, 1306
Illinois
NORTH POWDER RIVER BASIN, 2455
Wyoming
OHIO COUNTY KY, 1544
Kentucky
OLD GLORY - COAL CITY, 1969
Indiana
PANHANDLE NO. 3 AREA, IL, 1318
Illinois
PAWNEE, 1522
Illinois
PAXTON, 1674
Indiana
PIGEON CREEK, 1531
Indiana
PINCKNEYVILLE, 1168
Illinois
POSEY COUNTY, 1418
Indiana
POWDER RIVER BASIN WY, 0455
Wyoming
POWER, 1962
Missouri
RIOLA VERMILION GROVE, 1671
Illinois
ROUND PRAIRIE, 1592
Illinois
S COAL, 2704
Illinois
S. RANDOLPH COUNTY, 1151
Missouri
SAN MIGUEL, 2787
New Mexico
SCHELL-OSAGE, 1108
Missouri
SCOTTLAND/FRONTENAC - UNIVERSAL, 1208
Illinois
SHAWNEETOWN, 1518
Illinois
SHELBYTOWN NO 5 - IL., 1117
Illinois
SOMERVILLE NORTH, 1637
Indiana
ST. ELLEN - O'FALLON, IL, 1319
Illinois
STAR LAKE - PNRC, 2791
New Mexico
STURGIS (U.G.) - UNION CO KY, 1136
Kentucky
TEBO, 1323
Missouri
THOROUGHBRED, 2688
Kentucky
TONGUE, 0889
Wyoming
UTILITY, 1943
Illinois
VANDERBURGH COUNTY, 1473
Indiana





VENEDY / OKAWVILLE, 1173
Illinois
VIGO-VERMILLION CO., 1459
Indiana
VIKING/CORNING, 1626
Indiana
WALKER, 1481
Missouri
WALNUT HILL, 1593
Illinois
WARRICK COUNTY U/G, 1457
Indiana
WEST HARRISBURG, 1274
Illinois
WILDCAT HILLS-COTTAGE GROVE, 1749
Illinois
WILDCAT HILLS / EAGLE VALLEY, 1752
Illinois
YANKEE, 2789
Colorado
YOAST AREA, ROUTT CO., 0429
Colorado








Schedule 1.01(f)
to Credit Agreement

PRB-CO JOINT VENTURE TRANSACTIONS
i. The Borrower shall, and shall cause its Affiliates to, execute all such instruments of assignment, transfer and assumption and take all such other corporate or other actions as are necessary to sell, convey, assign, distribute or otherwise transfer to the Borrower or one or more of Affiliates (other than the Peabody Transferred Subsidiaries (as defined below) all of the right, title and interest of the Peabody Transferred Subsidiaries in or to all of the Excluded Assets (as defined in that certain Implementation Agreement, dated as of June 18, 2019, between PRB-CO Joint Venture and Arch Coal, Inc.);
ii. Peabody Investment Corp. shall form “Ocean Holdings, LLC” as a Delaware limited liability company and a wholly-owned Subsidiary of Peabody Investment Corp. and shall cause Ocean Holdings, LLC to elect to be taxed as a corporation for U.S. federal income tax purposes;
iii. Ocean Holdings, LLC shall form the PRB-CO JV, LLC as a Delaware limited liability company and a wholly-owned Subsidiary of Ocean Holdings, LLC;
iv. BTU Western Resources, Inc. shall convert into a Delaware limited liability company (and will thereafter be known as “Ocean Resources, LLC”);
v. Peabody Powder River Services, LLC and Peabody Powder River Operations, LLC shall elect to be taxed as disregarded entities for U.S. federal income tax purposes;
vi. American Land Holdings of Colorado, LLC shall distribute all of the outstanding equity interests in Sage Creek Holdings, LLC and Twentymile Coal, LLC to American Land Development, LLC;
vii. American Land Development, LLC shall distribute all of the outstanding equity interests in Sage Creek Holdings, LLC and Twentymile Coal, LLC to Peabody Investment Corp.;
viii. Peabody Colorado Operations, LLC shall distribute all of the outstanding equity interests in Peabody Sage Creek Mining, LLC and Peabody Twentymile Mining, LLC to Peabody Operations Holding, LLC;
ix. Peabody Operations Holding, LLC shall distribute all of the outstanding equity interests in Peabody Sage Creek Mining, LLC and Peabody Twentymile Mining, LLC to Peabody Investment Corp.;





x. Peabody Operations Holding, LLC shall distribute all of the outstanding equity interests in Peabody Powder River Operations, LLC to Peabody Investment Corp.; and
xi. Peabody Investment Corp. shall contribute all of the outstanding equity interests in the following entities to Ocean Holdings, LLC:
1.    Sage Creek Holdings, LLC;
2.    Twentymile Coal, LLC;
3.    Peabody Sage Creek Mining, LLC;
4.    Peabody Twentymile Mining, LLC;
5.    Peabody Natural Gas, LLC; and
6.    Peabody Powder River Operations, LLC (each such subsidiary, a “Peabody Transferred Subsidiary”).
xii. Ocean Holdings, LLC shall contribute all of the outstanding equity interests in the following entities to PRB-CO Joint Venture (as defined in that certain Implementation Agreement):
1.Sage Creek Holdings, LLC;
2.Twentymile Coal, LLC;
3.Peabody Sage Creek Mining, LLC;
4.Peabody Twentymile Mining, LLC;
5.Peabody Natural Gas, LLC; and
6.Peabody Powder River Operations, LLC.
xiii. Arch Coal, Inc. shall contribute its assets to be contributed to the PRB-CO Joint Venture pursuant to the Implementation Agreement and receive a 33.5% ownership interest in the PRB-CO Joint Venture.








Schedule 1.01(g)
to Credit Agreement

EXISTING LETTERS OF CREDIT
LC Number
Issuing Bank
Beneficiary
SLC00005194
Commerce Bank
Westchester Fire Insurance Company
SLC00005200
Commerce Bank
Travelers Casualty Insurance Company of America
10000643
Goldman Sachs
Travelers Casualty Insurance Company of America
10000641
Goldman Sachs
Bond Safeguard Insurance Company and/or
Lexon Insurance Company,
Ironshore Specialty Insurance Company,
Ironshore Indemnity, Inc.
40000032
Goldman Sachs
RGGS Land and Minerals Ltd., L.P.
NUSCGS002288
JP Morgan
Atlantic Specialty Insurance Company
NUSCGS003145
JP Morgan
Old Republic Insurance Company
NUSCGS003146
JP Morgan
Old Republic Insurance Company
NUSCGS003198
JP Morgan
Rockwood Casualty Insurance Company










Schedule 2.01
to Credit Agreement

COMMITMENTS
Revolving Commitments under the 2017 Incremental Revolving Facility

Revolving Lender
2017 Revolving Commitment
Macquarie Bank Limited
$25,000,000

Revolving Commitments under the 2019 Refinancing Revolving Facility

Revolving Lender
2019 Revolving Commitment
Goldman Sachs Bank USA
$75,000,000
JPMorgan Chase Bank, N.A.
$75,000,000
Credit Suisse AG, Cayman Islands Branch
$75,000,000
Bank of Montreal, Chicago Branch
$75,000,000
Deutsche Bank AG New York Branch
$75,000,000
Bank of America, N.A.
$50,000,000
Macquarie Bank Limited
$25,000,000
Regions Bank
$75,000,000
Commerce Bank
$40,000,000

Term Loan Commitments

On file with Administrative Agent







Schedule 5.08(b)
to Credit Agreement


FEE OWNED MATERIAL REAL PROPERTY
Material Real Property
State
Twentymile
Colorado
Sage Creek/Cow Camp Underground
Colorado
Area S. of Mine No17
Illinois
Bond County
Illinois
Carlyle East & West
Illinois
Elkton Reserves
Illinois
Gateway North
Illinois
Kaskaskia #1 / Fayetteville
Illinois
Panhandle No 3
Illinois
Wildcat Hills
Illinois
Bear Run
Illinois
Francisco
Indiana
Somerville Central
Indiana
Wild Boar
Indiana
El Segundo
New Mexico
Lee Ranch
New Mexico
North Antelope/Rochelle
Wyoming
Shoal Creek
Alabama







Schedule 5.08(c)
to Credit Agreement


LEASED MATERIAL REAL PROPERTY
Material Real Property
State
Twentymile
Colorado
Sage Creek/Cow Camp Underground
Colorado
Gateway North
Illinois
Wildcat Hills
Illinois
Bear Run
Indiana
Francisco
Indiana
Somerville Central
Indiana
Wild Boar
Indiana
El Segundo
New Mexico
Lee Ranch
New Mexico
Caballo
Wyoming
North Antelope/Rochelle
Wyoming
Rawhide
Wyoming
Shoal Creek
Alabama







Schedule 5.09
to Credit Agreement


ENVIRONMENTAL MATTERS
None.





Schedule 5.13
to Credit Agreement
SUBSIDIARIES
Name of Subsidiary
Jurisdiction of Formation
9 East Shipping Limited
United Kingdom
American Land Development, LLC
Delaware
American Land Holdings of Colorado, LLC
Delaware
American Land Holdings of Illinois, LLC
Delaware
American Land Holdings of Indiana, LLC
Delaware
American Land Holdings of Kentucky, LLC
Delaware
Big Ridge, Inc.
Illinois
Big Sky Coal Company
Delaware
Bowen Basin Coal Joint Venture*
Australia
BTU International B.V.
Netherlands
BTU Western Resources, Inc.
Delaware
Burton Coal Pty Ltd
Australia
Capricorn Joint Venture*
Australia
Carbones Peabody de Venezuela, S.A.
Venezuela
COALSALES II, LLC
Delaware
Complejo Siderurgico Del Lago, CA
Venezuela
Conservancy Resources, LLC
Delaware
Coppabella and Moorvale Joint Venture*
Australia
Dalrymple Bay Coal Terminal Pty Ltd
Australia
Desarrollos Venshelf IV, CA
Venezuela
El Segundo Coal Company, LLC
Delaware
Excel Equities International Pty Ltd
Australia
Excelven Pty Ltd.
British Virgin Islands
Guaniamo Mining Corporation
Venezuela
Half-Tide Marine Pty Ltd
Australia
Hayden Gulch Terminal, LLC
Delaware
Helensburgh Coal Pty Ltd
Australia
Hillside Recreational Lands, LLC
Delaware
Hunter Valley Coal Chain Coordinator Ltd
Australia
Kayenta Mobile Home Park, Inc.
Delaware
Kentucky United Coal, LLC
Indiana
Metropolitan Collieries Pty Ltd
Australia
Middlemount Coal Pty Ltd
Australia
Middlemount Mine Management Pty Ltd
Australia
Millennium Coal Pty Ltd
Australia





Moffatt County Mining, LLC
Delaware
Monto Coal 2 Pty Ltd.
Australia
Monto Coal Joint Venture*
Australia
Moorvale West Joint Venture*
Australia
New Mexico Coal Resources, LLC
Delaware
Newcastle Coal Infrastructure Group Pty Ltd
Australia
Newcastle Coal Shippers Pty Ltd
New South Wales
Newhall Funding Company (MBT)
Massachusetts
NGS Acquisition Corp., LLC
Delaware
North Goonyella Coal Mines Pty Ltd
Australia
North Wambo Pty Ltd
Australia
P&L Receivables Company, LLC
Delaware
Peabody (Bowen) Pty Ltd
Australia
Peabody (Burton coal) Pty Ltd
Australia
Peabody (Kogan Creek) Pty Ltd.
Australia
Peabody (Wilkie Creek) Pty Ltd.
Australia
Peabody America, LLC
Delaware
Peabody Arclar Mining, LLC
Indiana
Peabody Asset Holdings, LLC
Delaware
Peabody Australia Holdco Pty Ltd.
Australia
Peabody Australia Mining Pty Ltd.
Australia
Peabody BB Interests Pty Ltd.
Australia
Peabody Bear Run Mining, LLC
Delaware
Peabody Bear Run Services, LLC
Delaware
Peabody Bistrotel Pty Ltd.
Australia
Peabody Caballo Mining, LLC
Delaware
Peabody Capricorn Pty Ltd.
Australia
Peabody Cardinal Gasification, LLC
Delaware
Peabody China, LLC
Delaware
Peabody CHPP Pty Ltd
Australia
Peabody Coal Venezuela Ltd.
Bermuda
Peabody COALSALES, LLC
Delaware
Peabody COALSALES Pacific Pty Ltd.
Australia
Peabody COALTRADE Asia Private Ltd.
Singapore
Peabody COALTRADE GmbH
Germany
Peabody COALTRADE India Private Limited
India
Peabody COALTRADE International Limited
United Kingdom
Peabody COALTRADE, LLC
Delaware
Peabody Colorado Operations, LLC
Delaware
Peabody Colorado Services, LLC
Delaware
Peabody Coppabella Pty Ltd.
Australia
Peabody Coulterville Mining, LLC
Delaware
Peabody Custom Mining Pty Ltd.
Australia
Peabody Development Company, LLC
Delaware
Peabody Electricity, LLC
Delaware





Peabody Employment Services, LLC
Delaware
Peabody Energy Corporation
Delaware
Peabody Energy Australia Coal Pty Ltd
Australia
Peabody Energy Australia PCI (C&M Equipment) Pty Ltd.
Australia
Peabody Energy Australia PCI (C&M Management) Pty Ltd.
Australia
Peabody Energy Australia PCI Equipment Pty Ltd.
Australia
Peabody Energy Australia PCI Financing Pty Ltd.
Australia
Peabody Energy Australia PCI Mine Management Pty Ltd.
Australia
Peabody Energy Australia PCI Pty Ltd.
Australia
Peabody Energy Australia PCI Rush Pty Ltd.
Australia
Peabody Energy Australia Pty Ltd.
Australia
Peabody Energy Finance Pty Ltd.
Australia
Peabody Energy (Gibraltar) Limited
Gibraltar
Peabody Gateway North Mining, LLC
Delaware
Peabody Gateway Services, LLC
Delaware
Peabody Global Funding, LLC
Delaware
Peabody Global Holdings, LLC
Delaware
Peabody Global Services Pte Ltd.
Singapore
Peabody Gobi LLC
Mongolia
Peabody Holding Company, LLC
Delaware
Peabody Holland BV
Netherlands
Peabody IC Funding Corp.
Delaware
Peabody IC Holdings, LLC
Missouri
Peabody Illinois Services, LLC
Delaware
Peabody Indiana Services, LLC
Delaware
Peabody International (Gibraltar) Ltd.
Gibraltar
Peabody International Holdings, LLC
Delaware
Peabody International Investments, Inc.
Delaware
Peabody International Services, Inc.
Delaware
Peabody Investment & Development Business Services Beijing Co. Ltd.
China
Peabody Investments (Gibraltar) Limited
Gibraltar
Peabody Investments Corp.
Delaware
Peabody MCC (Gibraltar) Limited
Gibraltar
Peabody Midwest Management Services, LLC
Delaware
Peabody Midwest Mining, LLC
Indiana
Peabody Midwest Operations, LLC
Delaware
Peabody Midwest Services, LLC
Delaware
Peabody Mongolia, LLC
Delaware
Peabody Monto Coal Pty Ltd.
Australia
Peabody Moorvale West Pty Ltd.
Australia
Peabody Moorvale Pty Ltd
Australia
Peabody Natural Gas, LLC
Delaware
Peabody Natural Resources Company
Delaware
Peabody New Mexico Services, LLC
Delaware
Peabody Olive Downs Pty Ltd.
Australia





Peabody Operations Holding, LLC
Delaware
Peabody Pastoral Holdings Pty Ltd
Australia
Peabody Powder River Mining, LLC
Delaware
Peabody Powder River Operations, LLC
Delaware
Peabody Powder River Services, LLC
Delaware
Peabody Rocky Mountain Management Services, LLC
Delaware
Peabody Rocky Mountain Services, LLC
Delaware
Peabody Sage Creek Mining, LLC
Delaware
Peabody School Creek Mining, LLC
Delaware
Peabody Services Holdings, LLC
Delaware
Peabody Southeast Mining, LLC
Delaware
Peabody Twentymile Mining, LLC
Delaware
Peabody Venezuela Coal Corp.
Delaware
Peabody Venture Fund, LLC
Delaware
Peabody-Waterside Development, L.L.C.
Delaware
Peabody West Burton Pty Ltd.
Australia
Peabody Western Coal Company
Delaware
Peabody West Rolleston Pty Ltd.
Australia
Peabody West Walker Pty Ltd.
Australia
Peabody Wild Boar Mining, LLC
Delaware
Peabody Wild Boar Services, LLC
Delaware
Peabody Williams Fork Mining, LLC
Delaware
Peabody Wyoming Services, LLC
Delaware
PEC Equipment Company, LLC
Delaware
Port Kembla Coal Terminal Limited
Australia
PT Peabody Coaltrade Indonesia
Indonesia
PT Peabody Mining Services
Indonesia
Ribfield Pty Ltd
Australia
SAGE CREEK HOLDINGS, LLC
Delaware
Sage Creek Land & Reserves, LLC
Delaware
Seneca Coal Company, LLC
Delaware
Seneca Property, LLC
Delaware
Shoshone Coal Corporation
Delaware
Sterling Centennial Missouri Insurance Corporation
Missouri
Transportes Coal Sea de Venezuela, CA
Venezuela
Twentymile Coal, LLC
Delaware
United Minerals Company, LLC
Indiana
Wambo Coal Pty Ltd.
Australia
Wambo Coal Terminal Pty Ltd
Australia
Wambo Open Cut Pty Ltd.
Australia
West/North Burton Joint Venture*
Australia
WICET Holdings Pty Ltd.
Australia





Wilpinjong Coal Pty Ltd
Australia

* Unincorporated joint venture.






Schedule 5.18
to Credit Agreement


INTELLECTUAL PROPERTY
None.






Schedule 5.20
to Credit Agreement


MINES
Company
Name
Mailing Address
Shipping Address
New Mexico Coal Resources, LLC
El Segundo Mine Surface
P.O. Box 757
Grants, NM 87020
22 Miles North Highway 509
Grants, NM 87020
New Mexico Coal Resources, LLC
Lee Ranch Mine Surface
P.O. Box 757
Grants, NM 87020
35 Miles North of Milan
Grants, NM 87020
Peabody Bear Run Mining, LLC
Bear Run Mine Surface
7255 East County Road
600 South
Carlisle, IN 47838
7255 East County Road
600 South
Carlisle, IN 47838
Peabody Colorado Operations, LLC
Twentymile Mine U/G
29515 Routt County Road #27
Oak Creek, CO 80467
29515 Routt County Road #27
Oak Creek, CO 80467
Peabody Midwest Mining, LLC
Francisco Mine U/G
P.O. Box 347
Francisco, IN 47649
1225 North 725 East
Francisco, IN 47649
Peabody Midwest Mining, LLC
Gateway North Mine U/G
P.O. Box 369
Coulterville, IL 62237
13101 Zeigler 11 Road
Coulterville, IL 62237
Peabody Midwest Mining, LLC
Somerville Central Mine U/G
6280 S. 1025 E.
Oakland City, IN 47660
6280 S. 1025 E.
Oakland City, IN 47660
Peabody Midwest Mining, LLC
Wildcat Hills U/G Mine
115 Grayson Lane
Eldorado, IL 62930
115 Grayson Lane
Eldorado, IL 62930
Peabody Powder River Operations, LLC
Caballo Mine Surface
Caller Box 3041
Gillette, WY 82717-3041
2298 Bishop Road
Gillette, WY 82718
Peabody Powder River Operations, LLC
North Antelope Rochelle Mine Surface
Caller Box 3035
Gillette, WY 82717-3035
339A Antelope Road
Wright, WY 82732
Peabody Powder River Operations, LLC
Rawhide Mine Surface
Caller Box 3042
Gillette, WY 82717-3042
12433 North Highway 59
Gillette, WY 82716
Peabody Wild Boar Mining, LLC
Wild Boar Mine Surface
566 Dickeyville Road
Lynnville, IN 47619
566 Dickeyville Road
Lynnville, IN 47619
Peabody Southeast Mining, LLC
Shoal Creek Mine
8488 Nancy Ann Bend Rd. Adger, AL 35006
8488 Nancy Ann Bend Rd. Adger, AL 35006






Schedule 6.18
to Credit Agreement


POST CLOSING COVENANTS
[Reserved]





Schedule 7.01
to Credit Agreement


EXISTING LIENS
Step-in Deed originally between Wilpinjong Coal Pty Ltd and Macquarie Generation (and subsequently vested in AGL Macquarie Pty Limited) dated 11 January 2012 whereby Wilpinjong Coal Pty Ltd charges all of its assets relating to the Wilpinjong mine (subject to certain exclusions) granted to secure the performance by Wilpinjong Coal Pty Ltd of its obligations under a coal supply contract between AGL Macquarie Pty Limited and Wilpinjong Coal Pty Ltd

Liens with respect to cash collateral posted for other Australian obligations including deposits on coal supply contracts, contract step-in deeds, rail line licenses, utility deposits and other obligations of a like nature incurred in the ordinary course of business.






Schedule 7.02
to Credit Agreement

EXISTING INVESTMENTS
I. Joint Ventures
ARQ LIMITED CHANNEL ISLANDS
BOWEN BASIN COAL JOINT VENTURE - unincorporated
CALERA CORPORATION
CARBONES DEL GUASARE S.A.
CARDINAL GASIFICATION CENTER LLC
CAPRICORN JOINT VENTURE - unincorporated
COMPLEJO SIDERURGICO DEL LAGO, CA
COPPABELLA AND MOORVALE JOINT VENTURE - unincorporated
DALRYMPLE BAY COAL TERMINAL PTY LTD
DESARROLLOS VENSHELF IV, CA
ECONO-POWER INTERNATIONAL CORPORATION
EXCELVEN PTY LTD
FUTUREGEN INDUSTRIAL ALLIANCE, INC.
GREAT POINT ENERGY, INC.
GREEN GEN COMPANY LIMITED
GUANIAMO MINING CORPORATION
HUNTER VALLEY COAL CHAIN COORDINATOR LTD
HALF TIDE MARINE PTY LTD
ISLANDS OF WATERSIDE HOMEBUILDING, LLC
ISLANDS OF WATERSIDE, LLC
LRCS LIMITED PARTNERSHIP
MEGA URANIUM LTD
MIDDLEMOUNT COAL PTY LTD
MIDDLEMOUNT MINE MANAGEMENT PTY LTD
MONTO COAL 2 PTY LTD
MONTO COAL JOINT VENTURE - unincorporated
MOUNT THORLEY COAL LOADING PTY LTD
MOORVALE WEST JOINT VENTURE - unincorporated
NCIG HOLDINGS PTY LTD
NEWCASTLE COAL INFRASTRUCTURE GROUP PTY LTD
NEWCASTLE COAL SHIPPERS PTY LTD
NORTH WAMBO PTY LTD
PEABODY BISTROTEL PTY LTD
PEABODY ENERGY AUSTRALIA PCI (C&M EQUIPMENT) PTY LTD
PEABODY ENERGY AUSTRALIA PCI (C&M MANAGEMENT) PTY LTD
PORT KEMBLA COAL TERMINAL LIMITED
RIBFIELD PTY LTD
TRANSPORTES COAL SEA DE VENEZUELA, CA





UNITED WAMBO JOINT VENTURE – unincorporated
WAMBO COAL PTY LTD
WAMBO COAL TERMINAL PTY LTD
WAMBO OPEN CUT PTY LTD
WEST/NORTH BURTON JOINT VENTURE
WEST ROLLESTON JOINT VENTURE
WEST WALKER JOINT VENTURE
WICET HOLDINGS PTY LTD
WYOMING QUALITY HEALTHCARE COALITION, LLC






Schedule 7.03
to Credit Agreement


EXISTING INDEBTEDNESS
Indebtedness arising under Finance Lease liabilities in the aggregate amount of approximately $24.5 million as of June 30, 2019







Schedule 7.05
to Credit Agreement


SPECIFIED DISPOSITIONS
None.





Schedule 7.08
to Credit Agreement


TRANSACTIONS WITH AFFILIATES
None.






Schedule 7.12
to Credit Agreement


BURDENSOME AGREEMENTS
None.





Schedule 10.02
to Credit Agreement


ADMINISTRATIVE AGENT’S OFFICE; CERTAIN ADDRESSES FOR NOTICES

Administrative Agent Address:

JPMorgan Chase Bank, N.A.
383 Madison Avenue
New York, NY 10179
Attn: Peter Predun
Telephone: (212) 270-7005
Fax: (212) 270-5100

with a copy to:

JPMorgan Chase Bank, N.A.
500 Stanton Christiana Rd.
NCC5 / 1st Floor
Newark, DE 19713
Attention: Loan & Agency Services Group
Tel: 1-302-634-8719

Administrative Agent Account:

To: JPMORGAN CHASE BANK
Fed ABA: XXXXXXXX
Money Transfer Account #XXXXXXXX
Attn: LS2 Incoming Account
Reference: Peabody

Ops Contact Information:
Email: namrata.r.nair@chase.com
Fax: 302-634-1417

Legal Name and Address:
JPMORGAN CHASE BANK, N.A.
1111 Polaris Parkway
Columbus, OH 43240
Tax ID: 13 -4994650

Lender Addresses: on file with Administrative Agent

L/C Issuer Addresses: on file with Administrative Agent





Borrower Address:

Peabody Energy Corporation
701 Market Street
St. Louis, Missouri 63101
Attention: Treasurer
Phone: (314) 342-3486
Fax: (314) 588-2731
E-mail: JTichenor@peabodyenergy.com

with a copy to:

Jones Day
901 Lakeside Avenue
Cleveland, OH 44114
Attention: Rachel Rawson
Phone: (216) 586-7276
E-mail: rlrawson@jonesday.com

US Borrower Website:

www.peabodyenergy.com











Exhibit B
Security Agreement Amendment No. 2

Attached.




EXECUTION VERSION


AMENDMENT NO. 2 TO PRIORITY LIEN PLEDGE AND SECURITY AGREEMENT
AMENDMENT NO. 2 TO PRIORITY LIEN PLEDGE AND SECURITY AGREEMENT (this “Amendment No. 2”), dated as of September 17, 2019, by and among PEABODY ENERGY CORPORATION, a Delaware corporation (the “Borrower”), the other Grantors party hereto and WILMINGTON TRUST, NATIONAL ASSOCIATION, as Priority Collateral Trustee (in such capacity, including any permitted successor thereto, the “Priority Collateral Trustee”).
PRELIMINARY STATEMENTS
WHEREAS, the Borrower has entered into that certain Priority Lien Pledge and Security Agreement, dated as of April 3, 2017, among the Borrower, the other Grantors party thereto from time to time, and the Priority Collateral Trustee (as amended by that certain Amendment No. 1 to Priority Lien Pledge and Security Agreement, dated as of June 27, 2018, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to, but not including, the date hereof, the “Security Agreement”); and
WHEREAS, the Borrower has requested that the Security Agreement be amended as set forth herein (the Security Agreement, as amended by this Amendment No. 2, the “Amended Security Agreement”).
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is acknowledged by each party hereto, it is agreed:
SECTION 16.    CERTAIN DEFINITIONS. Capitalized terms used (including in the preamble and recitals hereto) but not defined herein shall have the meanings assigned to such terms in the Amended Security Agreement.
SECTION 17.    AMENDMENTS.
(c)
Clause (i) of the definition of “Excluded Assets” in Section 1.1 of the Security Agreement is hereby amended by replacing the proviso “provided that 65% of the voting Equity Interests and 100% of the non-voting Equity Interests in Peabody Investments (Gibraltar) Limited (or any successor thereto) shall not constitute Excluded Assets;” with the following text:
“provided that (i) 65% of the voting Equity Interests and 100% of the non-voting Equity Interests in Peabody Investments (Gibraltar) Limited (or any successor thereto) and (ii) the Equity Interests in the PRB/CO Joint Venture (as defined in the Credit Agreement) held (directly or indirectly) by the Borrower, in each case, shall not constitute Excluded Assets;”

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(d)
The definition of “Joint Venture” in Section 1.1 of the Security Agreement is hereby amended and restated to read in its entirety as follows:
““Joint Venture”: means any Person in which the Borrower or its Subsidiaries hold an ownership interest (a) that is not a Subsidiary and (b) which the Borrower or such Subsidiary is a general partner or a joint venturer; provided, however, that Middlemount Coal Pty Ltd shall be considered a Joint Venture for this definition.”
(e)
Section 4.11 of the Security Agreement is hereby amended and restated to read in its entirety as follows:
“4.11    [Reserved].”

SECTION 18.    REFERENCE TO AND EFFECT ON THE SECURITY AGREEMENT. On and after the Amendment No. 2 Effective Date (as defined below), each reference in the Security Agreement to “this Agreement,” “hereunder,” “hereof” or text of like import referring to the Security Agreement shall mean and be a reference to the Amended Security Agreement.
SECTION 19.    CONDITIONS PRECEDENT. The effectiveness of this Amendment No. 2 shall be subject to the satisfaction or waiver of the following conditions precedent (the date on which such conditions precedent are so satisfied or waived, the “Amendment No. 2 Effective Date”):  
(i)
The Priority Collateral Trustee shall have received a duly authorized, executed and delivered counterpart of the signature page to this Amendment No. 2 from the Borrower, each other Grantor named on the signature pages hereto and the Priority Collateral Trustee.
(j)
The Priority Collateral Trustee shall have received an Officers' Certificate to the effect that this Amendment No. 2 will not result in a breach of any provision or covenant contained in any of the Secured Debt Documents (as defined in the Collateral Trust Agreement), and that this Amendment No. 2 was permitted under Section 7.1 of the Collateral Trust Agreement.
(k)
The Priority Collateral Trustee shall have received a customary opinion of Jones Day, counsel to the Borrower and special New York counsel to the other Grantors addressed to the Priority Collateral Trustee and dated the Amendment No. 2 Effective Date to the effect that the execution of this Amendment No. 2 is authorized or permitted by the Collateral Trust Agreement.
(l)
The Priority Collateral Trustee shall have received a direction from an Act of Required Secured Parties (as defined in the Collateral Trust Agreement) authorizing and directing the Priority Collateral Trustee to execute and deliver this Amendment No. 2.

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SECTION 20.    MISCELLANEOUS PROVISIONS.
(a)
Ratification. This Amendment No. 2 is limited to the matters specified herein and shall not constitute acceptance or waiver, or, to the extent not expressly set forth herein, an amendment or modification, of any other provision of the Security Agreement.
(b)
Governing Law; Submission to Jurisdiction; Waivers. Sections 9.11 and 9.12 of the Security Agreement are incorporated by reference herein as if such Sections appeared herein, mutatis mutandis.
(c)
Severability. Section 9.8 of the Security Agreement is incorporated by reference herein as if such Section appeared herein, mutatis mutandis.
(d)
Counterparts; Headings. This Amendment No. 2 may be executed by one or more of the parties to this Amendment No. 2 on any number of separate counterparts (including by facsimile or other electronic imaging means), and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Amendment No. 2 by facsimile or other electronic transmission (e.g., “pdf” or “tif” format) shall be effective as delivery of a manually executed counterpart of this Amendment No. 2. The section headings used in this Amendment No. 2 are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.
(e)
Amendment, Modification and Waiver. This Amendment No. 2 may not be amended nor may any provision hereof be waived except pursuant to a writing signed by each of the parties hereto.
(f)
Concerning the Priority Collateral Trustee. Wilmington Trust, National Association is entering into this Amendment No. 2 solely in its capacity as Priority Collateral Trustee, upon the direction of an Act of Required Secured Parties and in reliance on documents delivered to it pursuant to Section 4 hereof. In acting hereunder, the Priority Collateral Trustee shall have all of the rights, privileges and immunities of the Priority Collateral Trustee set forth in the Security Agreement, the Collateral Trust Agreement and the other Priority Lien Documents (as defined in the Collateral Trust Agreement), as though fully set forth herein.
[Remainder of page intentionally blank; signatures begin next page]

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to be duly executed by their respective authorized officers as of the date first above written.


PEABODY ENERGY CORPORATION, as Borrower


By:    
Name:
Title:

[Signature Page to Amendment No. 2 to Priority Lien Pledge and Security Agreement]




AMERICAN LAND DEVELOPMENT, LLC
AMERICAN LAND HOLDINGS OF COLORADO, LLC
AMERICAN LAND HOLDINGS OF ILLINOIS, LLC
AMERICAN LAND HOLDINGS OF INDIANA, LLC
AMERICAN LAND HOLDINGS OF KENTUCKY, LLC
BIG RIDGE, INC.
BTU WESTERN RESOURCES, INC.
COALSALES II, LLC
CONSERVANCY RESOURCES, LLC
EL SEGUNDO COAL COMPANY, LLC
HAYDEN GULCH TERMINAL, LLC
HILLSIDE RECREATIONAL LANDS, LLC
KAYENTA MOBILE HOME PARK, INC.
KENTUCKY UNITED COAL, LLC
MOFFAT COUNTY MINING, LLC
NEW MEXICO COAL RESOURCES, LLC
PEABODY AMERICA, LLC
PEABODY ARCLAR MINING, LLC
PEABODY ASSET HOLDINGS, LLC
PEABODY BEAR RUN MINING, LLC
PEABODY BEAR RUN SERVICES, LLC
PEABODY CABALLO MINING, LLC
PEABODY CARDINAL GASIFICATION, LLC
PEABODY CHINA, LLC
PEABODY COALSALES, LLC
PEABODY COALTRADE, LLC
PEABODY COLORADO OPERATIONS, LLC
PEABODY COLORADO SERVICES, LLC
PEABODY COULTERVILLE MINING, LLC
PEABODY DEVELOPMENT COMPANY, LLC
PEABODY ELECTRICITY, LLC
PEABODY EMPLOYMENT SERVICES, LLC
PEABODY GATEWAY NORTH MINING, LLC


By:                             
Name:
Title:

[Signature Page to Amendment No. 2 to Priority Lien Pledge and Security Agreement]



PEABODY GATEWAY SERVICES, LLC
PEABODY GLOBAL FUNDING, LLC
PEABODY HOLDING COMPANY, LLC
PEABODY ILLINOIS SERVICES, LLC
PEABODY INDIANA SERVICES, LLC
PEABODY INTERNATIONAL INVESTMENTS, INC.
PEABODY INTERNATIONAL SERVICES, INC.
PEABODY INVESTMENTS CORP.
PEABODY MIDWEST MANAGEMENT SERVICES, LLC
 
PEABODY MIDWEST MINING, LLC
PEABODY MIDWEST OPERATIONS, LLC
PEABODY MIDWEST SERVICES, LLC
PEABODY MONGOLIA, LLC
PEABODY NATURAL GAS, LLC
PEABODY NATURAL RESOURCES COMPANY
PEABODY NEW MEXICO SERVICES, LLC
PEABODY OPERATIONS HOLDING, LLC
PEABODY POWDER RIVER MINING, LLC
PEABODY POWDER RIVER OPERATIONS, LLC
PEABODY POWDER RIVER SERVICES, LLC
PEABODY ROCKY MOUNTAIN MANAGEMENT SERVICES, LLC
PEABODY ROCKY MOUNTAIN SERVICES, LLC
PEABODY SCHOOL CREEK MINING, LLC
PEABODY SERVICES HOLDINGS, LLC
PEABODY VENEZUELA COAL CORP.
PEABODY VENTURE FUND, LLC
PEABODY WILD BOAR MINING, LLC
PEABODY WILD BOAR SERVICES, LLC
PEABODY WILLIAMS FORK MINING, LLC
PEABODY WYOMING SERVICES, LLC
PEABODY-WATERSIDE DEVELOPMENT, L.L.C.
PEC EQUIPMENT COMPANY, LLC
SAGE CREEK LAND & RESERVES, LLC
SHOSHONE COAL CORPORATION
TWENTYMILE COAL, LLC
NGS ACQUISITION CORP., LLC

By:                             
Name:
Title:

[Signature Page to Amendment No. 2 to Priority Lien Pledge and Security Agreement]




PEABODY INTERNATIONAL HOLDINGS, LLC

By: Peabody Investments Corp., as its sole member

By:                             
Name:
Title:


PEABODY IC FUNDING CORP.


By:                             
Name:
Title:


BIG SKY COAL COMPANY


By:                                
Name:
Title:


PEABODY SAGE CREEK MINING, LLC
SAGE CREEK HOLDINGS, LLC


By:                             
Name:
Title:


PEABODY TWENTYMILE MINING, LLC


By:                                
Name:
Title:

[Signature Page to Amendment No. 2 to Priority Lien Pledge and Security Agreement]




PEABODY WESTERN COAL COMPANY
SENECA PROPERTY, LLC
UNITED MINERALS COMPANY, LLC


By:                             
Name:
Title:


SENECA COAL COMPANY, LLC


By:                             
Name:
Title:


PEABODY SOUTHEAST MINING, LLC


By:                             
Name:
Title:



[Signature Page to Amendment No. 2 to Priority Lien Pledge and Security Agreement]




PEABODY GLOBAL HOLDINGS, LLC


By:                             
Name:
Title:




[Signature Page to Amendment No. 2 to Priority Lien Pledge and Security Agreement]




WILMINGTON TRUST, NATIONAL ASSOCIATION, solely in its capacity as Priority Collateral Trustee

By
    
    Name:
    Title:
 


[Signature Page to Amendment No. 2 to Priority Lien Pledge and Security Agreement]


Exhibit 10.2
AMENDMENT NO. 7 TO CREDIT AGREEMENT
This AMENDMENT NO. 7 TO CREDIT AGREEMENT, dated as of September 17, 2019 (this “Amendment”), among PEABODY ENERGY CORPORATION, a Delaware corporation (the “Borrower”), the other Reaffirming Parties (as defined below) party hereto, JPMORGAN CHASE BANK, N.A., as administrative agent (as successor to Goldman Sachs Bank USA in its capacity as administrative agent) (in such capacity, the “Administrative Agent”), the 2019 Incremental Revolving Lender party hereto, each undersigned Lender with Refinancing Revolving Commitments (as defined below) (each, a “Refinancing Revolving Lender” and collectively, the “Refinancing Revolving Lenders”) and the other Lenders party hereto (such Lenders, together with the Refinancing Revolving Lenders party hereto, collectively constituting the Required Lenders).
PRELIMINARY STATEMENTS
WHEREAS, reference is made to that certain Credit Agreement, dated as of April 3, 2017, among the Borrower, the Administrative Agent and the lenders party thereto from time to time (as amended by that certain Amendment No. 1 to Credit Agreement, dated as of September 18, 2017, that certain Amendment No. 2 to Credit Agreement, dated as of November 17, 2017, that certain Amendment No. 3 to Credit Agreement, dated as of December 8, 2017, that certain Amendment No. 4 to Credit Agreement, dated as of April 11, 2018, that certain Amendment No. 5 to Credit Agreement, dated as of June 27, 2018, the certain Technical Amendment to Credit Agreement, dated as of July 19, 2018, and that certain Amendment No. 6 to Credit Agreement, dated as of September 17, 2019, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to, but not including, the date hereof, the “Existing Credit Agreement” and the Existing Credit Agreement as amended pursuant hereto, including the Refinancing Amendments (as defined below) (and including all schedules thereto, in each case which schedules shall be in form and substance satisfactory to Administrative Agent, the “Credit Agreement”);
WHEREAS, pursuant to Section 2.15(a) of the Credit Agreement, the Borrower has requested to increase the principal amount of the 2019 Incremental Revolving Commitments (as defined in the Sixth Amendment) (such increase, the “Additional 2019 Incremental Revolving Commitment”) by an aggregate principal amount of $20,000,000 pursuant to clause (b)(i) of the definition of Incremental Debt Cap, to be provided by the 2019 Incremental Revolving Lender (as defined the in the Sixth Amendment) party hereto and effective on the Seventh Amendment Effective Date (as defined below) pursuant to the terms hereof and in the Sixth Amendment and the Amended Credit Agreement (as defined in the Sixth Amendment);
WHEREAS, the 2019 Incremental Revolving Lender party hereto is prepared to provide its 2019 Incremental Revolving Commitments on the terms set forth in the Sixth Amendment and the Amended Credit Agreement in an amount equal to its 2019 Incremental Revolving Commitment set forth on Schedule 1 hereto, subject to the terms and conditions set forth herein and in the Amended Credit Agreement;
WHEREAS, upon the effectiveness of the Additional 2019 Incremental Revolving Commitment pursuant hereto, the Borrower hereby requests pursuant to Section 2.16 the Existing Credit Agreement, and the lenders party hereto as Refinancing Revolving Lenders have agreed to provide, a Refinancing Revolving Facility in an aggregate principal amount of $540,000,000 (the “Refinancing Revolving Commitments”), subject to the terms and conditions set forth herein and in the Credit Agreement, which will replace and refinance in full all existing Revolving Commitments of such Refinancing Revolving Lenders under the Revolving Facility outstanding under the Existing Credit Agreement




immediately prior to the effectiveness of the Refinancing Amendments (the “2017 Incremental Revolving Facility”);
WHEREAS, each Refinancing Revolving Lender party hereto is prepared to provide the Refinancing Revolving Commitments in an amount equal to its Refinancing Revolving Commitment set forth on Schedule 1 hereto, subject to the terms and conditions set forth herein and in the Credit Agreement;
WHEREAS, as contemplated by Section 2.16(e) of the Existing Credit Agreement, subject to the satisfaction of the conditions precedent set forth in Section 5 hereof, each of the Administrative Agent, the Refinancing Revolving Lenders party hereto and the Borrower have agreed to amend certain terms of the Existing Credit Agreement as set forth in Section 4 hereof (the “Refinancing Amendments”) in order to give effect to the Refinancing Revolving Commitments provided hereunder;
WHEREAS, each Existing Letter of Credit set forth in Schedule 1.01(g) annexed to the Credit Agreement shall be deemed to be a Letter of Credit pursuant to the Revolving Facility in effect on and after the Seventh Amendment Effective Date;
WHEREAS, each Loan Party party hereto and Gibraltar Holdings (collectively, the “Reaffirming Parties”, and each, a “Reaffirming Party”) expects to realize substantial direct and indirect benefits as a result of this Amendment becoming effective and the consummation of the transactions contemplated hereby and agrees to reaffirm its obligations under the Credit Agreement, the Security Documents, and the other Loan Documents to which it is a party;
NOW, THEREFORE, in consideration of the undertakings set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
1.Defined Terms; Interpretation; Etc. Capitalized terms used and not defined herein shall have the meanings assigned to such terms in the Credit Agreement. This Amendment is a “Loan Document” (as defined in the Existing Credit Agreement and the Credit Agreement).
2.    Additional 2019 Incremental Revolving Commitment. Pursuant to Section 2.15 of the Credit Agreement, and subject solely to the satisfaction of the conditions precedent set forth in Section 5 hereof, on and as of the Seventh Amendment Effective Date:
(a)     The 2019 Incremental Revolving Lender party hereto hereby severally and not jointly agrees to commit to provide its 2019 Incremental Revolving Commitment set forth on Schedule 1. Such Additional 2019 Incremental Revolving Commitments shall be an increase to the Revolving Commitments of the Lender under the 2017 Incremental Revolving Facility.
(b)     The 2019 Incremental Revolving Lender party hereto hereby (i) represents and warrants that (A) it has full power and authority, and has taken all action necessary, to execute and deliver this Amendment and to consummate the transactions contemplated hereby and in the Amended Credit Agreement, (B) it is an existing Lender under the Credit Agreement, (C) from and after the Seventh Amendment Effective Date, it shall be bound by the provisions of the Amended Credit Agreement, (D) it is sophisticated with respect to decisions to acquire assets of the type represented by the 2019 Incremental Revolving Commitments and the 2019 Incremental Revolving Loans and either it, or the Person exercising discretion in making its decision to commit to provide its 2019 Incremental Revolving Commitment, is experienced in committing to commitments and loans of such type, (E) it has received a copy of the Credit Agreement, the Sixth Amendment and the other Loan Documents, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 6.01

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of the Amended Credit Agreement, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Seventh Amendment and to commit to provide its respective 2019 Incremental Revolving Commitment, (F) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Seventh Amendment and to commit to provide its respective 2019 Incremental Revolving Commitment, and (G) it has provided Borrower and the Administrative Agent any documentation required to be delivered by it pursuant to the terms of the Amended Credit Agreement (including Section 3.01(e) of the Amended Credit Agreement), duly completed and executed by such 2019 Incremental Revolving Lender; (ii) agrees that (A) it will, independently and without reliance on either the Administrative Agent or any other 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 the Loan Documents, and (B) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender; and (iii) appoints and authorizes the Administrative Agent and the Collateral Trustee to take such action as agent on its behalf and to exercise such powers under the Amended Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent and Collateral Trustee, as the case may be, by the terms thereof, together with such powers as are reasonably incidental thereto.
(c)     On the Seventh Amendment Effective Date, each of the existing Incremental Revolving Lenders under the Amended Credit Agreement is hereby deemed to assign to the 2019 Incremental Revolving Lender party hereto, and the 2019 Incremental Revolving Lender party hereto is hereby deemed to purchase from each of the existing Incremental Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Incremental Revolving Loans and participations in Letters of Credit outstanding on the Seventh Amendment Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Incremental Revolving Loans and participations in Letters of Credit will be held by existing Incremental Revolving Lenders and 2019 Incremental Revolving Lender party hereto ratably in accordance with their Incremental Revolving Commitments after giving effect to the Additional 2019 Incremental Revolving Commitments to the existing Incremental Revolving Commitments.
(d)     The 2019 Incremental Revolving Lender party hereto, the Administrative Agent and the Reaffirming Parties party hereto agree that this Seventh Amendment shall constitute an “Incremental Facility Request” and an “Incremental Amendment” pursuant to and in accordance with Section 2.15 of the Credit Agreement and a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents. The Incremental Facility Effective Date in respect of the Additional 2019 Incremental Revolving Commitment shall be the Seventh Amendment Effective Date.
(e)     On the Seventh Amendment Effective Date, the Administrative Agent will record in the Register the Additional 2019 Incremental Revolving Commitment made hereunder by the 2019 Incremental Revolving Lender party hereto as “Incremental Revolving Commitments” under the 2017 Incremental Revolving Facility.
3.    Refinancing Revolving Facility.
(a)     Following the effectiveness of the Additional 2019 Incremental Revolving Commitment, each Refinancing Revolving Lender hereby severally commits to provide its respective Refinancing Revolving Commitments set forth opposite such Refinancing Revolving Lender’s name on Schedule I hereto and to make its Refinancing Revolving Loans, on the terms and subject to the conditions set forth herein and the Credit Agreement:

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(b)     By executing and delivering this Amendment, each Refinancing Revolving Lender (including in its capacity as an L/C Issuer, if applicable) hereby (i) represents and warrants that (A) it has full power and authority, and has taken all action necessary, to execute and deliver this Amendment and to consummate the transactions contemplated hereby and in the Credit Agreement, (B) from and after the Seventh Amendment Effective Date, it shall be bound by the provisions of the Credit Agreement and, to the extent of its Refinancing Revolving Commitment, shall have the obligations of a Lender thereunder, (C) it is sophisticated with respect to decisions to acquire assets of the type represented by the Refinancing Revolving Commitments and the Revolving Loans to be incurred thereunder (such Revolving Loans, the “Refinancing Revolving Loans”) and either it, or the Person exercising discretion in making its decision to commit to provide its Refinancing Revolving Commitment, is experienced in committing to commitments and loans of such type, (D) it has received a copy of the Existing Credit Agreement, this Amendment and the other Loan Documents, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 6.01 of the Existing Credit Agreement and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Amendment and to commit to provide its respective Refinancing Revolving Commitment, and (E) it has, independently and without reliance upon Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Amendment and to commit to provide its respective Refinancing Revolving Commitment; (ii) agrees that (A) it will, independently and without reliance on the Administrative Agent or any other 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 the Loan Documents, and (B) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender; and (iii) appoints and authorizes the Administrative Agent and the Collateral Trustee to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Loan Documents as are delegated to Administrative Agent and Collateral Trustee, as the case may be, by the terms thereof, together with such powers as are reasonably incidental thereto.
(c)    Status as a Lender; Status as Refinancing Revolving Loans. Each Loan Party and each Refinancing Revolving Lender acknowledges and agrees that (i) upon its execution of this Amendment and the occurrence of the Seventh Amendment Effective Date, each Refinancing Revolving Lender shall continue to be a “Lender” under, and for all purposes of, the Credit Agreement and the other Loan Documents, and shall be subject to and bound by the terms thereof, and shall perform all the obligations of and shall have all rights of a Lender thereunder; (ii) notwithstanding anything to the contrary in the Credit Agreement or any Loan Document, each Refinancing Revolving Commitment shall be deemed (A) a “Revolving Commitment” under the “Revolving Facility”, and (B) except as set forth herein with respect to the Revolving Facility Maturity Date and the Applicable Rate, to have terms identical to the 2017 Incremental Revolving Facility and form part of the “Revolving Facility”, in each case, as the applicable context requires, under, and for all purposes of, the Credit Agreement and the other Loan Documents, with such terms and conditions applicable thereto in each case as specified in the Credit Agreement or such Loan Document, unless otherwise separately and specifically stated therefor in this Amendment; (iii) for purposes of Section 10.1 of the Credit Agreement, the Refinancing Revolving Loans shall be considered collectively with all other Loans for purposes of making determinations of “Required Lenders” (or for any consent requiring the consent of affected Lenders or of all of the Lenders) and shall be treated as Revolving Loans for all other purposes thereunder in accordance with the Credit Agreement; and (iv) the definition “Obligations” shall be deemed to include all unpaid principal of and accrued and unpaid interest on all Refinancing Revolving Loans. For the avoidance of doubt, each party hereto acknowledges and agrees that it is the intention of such party that except as otherwise separately and specifically stated therefor in this Amendment or the Credit Agreement, the terms and conditions applicable to, and the provisions in the Credit Agreement and the other Loan Documents relating to, the Refinancing Revolving Loans shall be

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identical to the terms and conditions applicable to, and the provisions in the Credit Agreement and the other Loan Documents relating to, the Revolving Loans incurred under the Revolving Facility.
4.    Amendments to Credit Agreement. Pursuant to and in accordance with Section 10.01 of the Existing Credit Agreement, effective as of the Amendment Effective Time, each of the parties hereto agree that the Existing Credit Agreement shall be amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the document attached as Exhibit A hereto.
5.    Conditions Precedent. The Refinancing Amendments and the obligations of the (i) 2019 Incremental Revolving Lender party hereto to make its Additional 2019 Incremental Revolving Commitment, and (ii) thereafter, the Refinancing Revolving Lenders to provide the Refinancing Revolving Commitments and the amendments set forth in Section 3 hereof shall become effective on the date (the “Seventh Amendment Effective Date”) and at the time (the “Amendment Effective Time”) on and at which the following conditions precedents are satisfied or waived in accordance with such section:
(a)    The Administrative Agent’s receipt of the following, each of which shall be:
(i)    executed counterparts of (a) this Amendment from each of the parties thereto, (b) an amended and restated Guaranty from each of the Loan Parties, (c) the Additional Secured Debt Designation (as defined in the Collateral Trust Agreement) from the Borrower and acknowledged by the Collateral Trustee, and (d) the Amendment No. 2 to Priority Lien Pledge and Security Agreement, dated as of the date hereof, from each of the Loan Parties, Gibraltar Holdings and the Collateral Trustee;
(ii)    such certificates of resolutions or other action, incumbency certificates and/or other certificates of duly authorized officers of each Loan Party and each Restricted Subsidiary party to a Loan Document, in each case, as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each officer of each Loan Party or Restricted Subsidiary executing the Loan Documents to which each Loan Party or Restricted Subsidiary is a party;
(iii)    such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(iv)    the executed opinion of Jones Day, counsel to the Borrower and special New York counsel to the other Loan Parties, addressed to the Administrative Agent, the Collateral Trustee and each Lender;
(v)    the executed opinion of Bingham Greenebaum Doll LLP, special Indiana counsel to the Loan Parties, addressed to the Administrative Agent, the Collateral Trustee and each Lender;
(vi)    a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in clauses (b) and (c) of this Section 4 have been satisfied;

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(vii)    a solvency certificate from the chief financial officer of the Borrower in the form of Exhibit K to the Credit Agreement, which demonstrates that the Borrower and its Restricted Subsidiaries on a consolidated basis, are, and after giving effect to the transactions set forth in this Amendment, will be, Solvent;
(b)    no Default or Event of Default shall exist, or would result immediately, from transactions contemplated hereby on the Seventh Amendment Effective Date;
(c)    the representations and warranties of (i) the Borrower contained in Article V of the Credit Agreement and (ii) each Loan Party contained in each other Loan Document shall be true and correct in all material respects on and as of the Seventh Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, and except that the representations and warranties contained in subsection (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clause (b) of Section 6.01 of the Credit Agreement; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality or by a reference to a Material Adverse Effect in the text thereof;
(d)    Any fees required to be paid on or before the Seventh Amendment Effective Date to the Agents, the Arrangers or the Lenders under this Amendment, the Credit Agreement, the Fee Letters or otherwise in connection with the Facilities (including the fees to be paid to the Arrangers in respect of each of their Revolving Commitments under the 2019 Refinancing Revolving Facility as set forth in the applicable Fee Letters) shall have been paid and, unless waived by the Agents, the Arrangers or the Lenders, as applicable, to the extent invoiced at least three Business Days prior to the Seventh Amendment Effective Date, the Borrower shall have paid all reasonable and documented out-of-pocket costs and expenses of the Agents, Arrangers and the Lenders (including the reasonable and documented fees and expenses of one counsel to the Agents and the Lenders, plus such additional amounts of such reasonable and documented fees and expenses (including filing fees in respect of collateral) as shall constitute its reasonable estimate of such fees and expenses incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Agents));
(e)    the Arrangers and the Agents shall have received at least three business days prior to the Seventh Amendment Effective Date (i) all documentation and other information required by regulatory authorities with respect to the Borrower and the other Loan Parties under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower, in each case, that has been requested by the Arrangers or the Agents at least ten Business Days prior to the Seventh Amendment Effective Date.
For purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Seventh Amendment Effective Date specifying its objection thereto.
6.    Reaffirmation.

6




(a)    To induce the Lenders and the Administrative Agent to enter into this Amendment, each of the Loan Parties and Gibraltar Holdings hereby acknowledges and reaffirms its obligations under each Loan Document to which it is a party, including, without limitation, any grant, pledge or collateral assignment of a lien or security interest, as applicable, contained therein, in each case as amended, restated, amended and restated, supplemented or otherwise modified prior to or as of the date hereof . The Borrower acknowledges and agrees that each of the Loan Documents to which it is a party or otherwise bound shall continue in full force and effect and that all of its obligations thereunder shall not be impaired or limited by the execution or effectiveness of this Amendment.
(b)    In furtherance of the foregoing clause (a), Gibraltar Holdings and each of the Loan Parties that is party to any Security Document, in its capacity as a “grantor”, “pledgor” or other similar capacity under such Security Document (in such capacity, each a “Reaffirming Party”), hereby acknowledges that it has reviewed and consents to the terms and conditions of this Amendment and the transactions contemplated hereby. In addition, each Reaffirming Party reaffirms the security interests granted by such Reaffirming Party under the terms and conditions of the Security Documents (in each case, to the extent a party thereto) to secure the Secured Obligations and agrees that such security interests remain in full force and effect and are hereby ratified, reaffirmed and confirmed. Each Reaffirming Party hereby (i) confirms that each Security Document to which it is a party or is otherwise bound and all Collateral encumbered thereby will continue to secure, to the fullest extent possible in accordance with the Security Documents, the payment and performance of the Secured Obligations, including without limitation the payment and performance of all such applicable Secured Obligations that are joint and several obligations of each Guarantor and each Reaffirming Party now or hereafter existing, in each case pursuant to the terms of the Security Documents such Reaffirming Party is a party to, (ii) confirms its respective grant to the Collateral Trustee for the benefit of the Secured Parties of the security interest in and continuing Lien on all of such Reaffirming Party’s right, title and interest in, to and under all Collateral to which such Reaffirming Party granted a security interest in and a continuing Lien on pursuant to the terms of the Security Documents to which such Reaffirming Party is party to, in each case whether now owned or existing or hereafter acquired or arising and wherever located, as collateral security for the prompt and complete payment and performance in full when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise, of all applicable Secured Obligations, subject to the terms contained in the applicable Loan Documents and (iii) confirms its respective pledges, grants of security interests and other obligations, as applicable, under and subject to the terms of each of the Security Documents to which it is a party.
7.    Miscellaneous Provisions.
(a)    Governing Law; Submission to Jurisdiction, Consent to Service of Process, Waiver of Jury Trial, Etc. Sections 10.14 and 10.15 of the Existing Credit Agreement are incorporated by reference herein as if such Sections appeared herein, mutatis mutandis.
(b)    Severability. Section 10.12 of the Existing Credit Agreement is incorporated by reference herein as if such Section appeared herein, mutatis mutandis.
(c)    Counterparts; Headings. This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Amendment by telecopy or other electronic imaging means (i.e., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Amendment. Article and Section headings used herein are included for convenience of reference only, shall not constitute a part hereof, shall not be given any substantive effect and shall not affect the interpretation of this Amendment.

7




(d)    Third Party Beneficiary. The Collateral Trustee shall be an express third party beneficiary of this Amendment.
(e)    Amendment, Modification and Waiver. This Amendment may not be amended nor may any provision hereof be waived except pursuant to a writing signed by each of the parties hereto.
(f)    Lender Consents. Each Lender party hereto (it being agreed that all of such Lenders constitute Required Lenders under the Credit Agreement) hereby (i) consents to the Administrative Agent delivering a direction in writing to the Collateral Trustee (it being agreed that such direction constitutes an Act of Required Secured Parties under the Collateral Trust Agreement) authorizing and directing the Collateral Trustee to execute Security Agreement Amendment No. 2 as set forth in the document attached as Exhibit B hereto on the Seventh Amendment Effective Date and (ii) approves the terms set forth herein and consents to the execution and delivery of Security Agreement Amendment No. 2 on the Seventh Amendment Effective Date.
[Remainder of Page Intentionally Left Blank]


8




IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to execute and deliver this Amendment as of the date first set forth above.
JPMORGAN CHASE BANK, N.A., as Administrative Agent


By: /s/ Peter S. Predun_________________________
Name: Peter S. Predun
Title: Executive Director




[Signature Page to Amendment No. 7 to Credit Agreement]



PEABODY ENERGY CORPORATION, as Borrower


By: /s/ Mark A. Spurbeck                
Name: Mark A. Spurbeck    
Title: Senior Vice President and Chief Accounting Officer    

[Signature Page to Amendment No. 7 to Credit Agreement]




AMERICAN LAND DEVELOPMENT, LLC
AMERICAN LAND HOLDINGS OF COLORADO, LLC
AMERICAN LAND HOLDINGS OF ILLINOIS, LLC
AMERICAN LAND HOLDINGS OF INDIANA, LLC
AMERICAN LAND HOLDINGS OF KENTUCKY, LLC
BIG RIDGE, INC.
BTU WESTERN RESOURCES, INC.
COALSALES II, LLC
CONSERVANCY RESOURCES, LLC
EL SEGUNDO COAL COMPANY, LLC
HAYDEN GULCH TERMINAL, LLC
HILLSIDE RECREATIONAL LANDS, LLC
KAYENTA MOBILE HOME PARK, INC.
KENTUCKY UNITED COAL, LLC
MOFFAT COUNTY MINING, LLC
NEW MEXICO COAL RESOURCES, LLC
PEABODY AMERICA, LLC
PEABODY ARCLAR MINING, LLC
PEABODY ASSET HOLDINGS, LLC
PEABODY BEAR RUN MINING, LLC
PEABODY BEAR RUN SERVICES, LLC
PEABODY CABALLO MINING, LLC
PEABODY CARDINAL GASIFICATION, LLC
PEABODY CHINA, LLC
PEABODY COALSALES, LLC
PEABODY COALTRADE, LLC
PEABODY COLORADO OPERATIONS, LLC
PEABODY COLORADO SERVICES, LLC
PEABODY COULTERVILLE MINING, LLC


By: /s/ James A. Tichenor                    
Name: James A. Tichenor
Title: Vice President and Treasurer


[Signature Page to Amendment No. 7 to Credit Agreement]



PEABODY DEVELOPMENT COMPANY, LLC
PEABODY ELECTRICITY, LLC
PEABODY EMPLOYMENT SERVICES, LLC
PEABODY GATEWAY NORTH MINING, LLC
PEABODY GATEWAY SERVICES, LLC
PEABODY GLOBAL FUNDING, LLC
PEABODY HOLDING COMPANY, LLC
PEABODY IC FUNDING CORP.
PEABODY ILLINOIS SERVICES, LLC
PEABODY INDIANA SERVICES, LLC
PEABODY INTERNATIONAL HOLDINGS, LLC
PEABODY INTERNATIONAL INVESTMENTS, INC.
PEABODY INTERNATIONAL SERVICES, INC.
PEABODY INVESTMENTS CORP.
PEABODY MIDWEST MANAGEMENT SERVICES, LLC
PEABODY MIDWEST MINING, LLC
PEABODY MIDWEST OPERATIONS, LLC
PEABODY MIDWEST SERVICES, LLC
PEABODY MONGOLIA, LLC
PEABODY NATURAL GAS, LLC
PEABODY NATURAL RESOURCES COMPANY
PEABODY NEW MEXICO SERVICES, LLC
PEABODY OPERATIONS HOLDING, LLC
PEABODY POWDER RIVER MINING, LLC
PEABODY POWDER RIVER OPERATIONS, LLC
PEABODY POWDER RIVER SERVICES, LLC
PEABODY ROCKY MOUNTAIN MANAGEMENT SERVICES, LLC
PEABODY ROCKY MOUNTAIN SERVICES, LLC


By: /s/ James A. Tichenor                    
Name: James A. Tichenor
Title: Vice President and Treasurer


[Signature Page to Amendment No. 7 to Credit Agreement]



PEABODY SCHOOL CREEK MINING, LLC
PEABODY SERVICES HOLDINGS, LLC
PEABODY SOUTHEAST MINING, LLC
PEABODY VENEZUELA COAL CORP.
PEABODY VENTURE FUND, LLC
PEABODY WILD BOAR MINING, LLC
PEABODY WILD BOAR SERVICES, LLC
PEABODY WILLIAMS FORK MINING, LLC
PEABODY WYOMING SERVICES, LLC
PEABODY-WATERSIDE DEVELOPMENT, L.L.C.
SAGE CREEK LAND & RESERVES, LLC
SENECA PROPERTY, LLC
SHOSHONE COAL CORPORATION
TWENTYMILE COAL, LLC
UNITED MINERALS COMPANY, LLC


By: /s/ James A. Tichenor                    
Name: James A. Tichenor
Title: Vice President and Treasurer


NGS ACQUISITION CORP., LLC


By: /s/ James A. Tichenor                    
Name: James A. Tichenor
Title: Treasurer


BIG SKY COAL COMPANY


By: /s/ Bryce G. West                    
Name: Bryce G. West
Title: President


[Signature Page to Amendment No. 7 to Credit Agreement]




PEABODY SAGE CREEK MINING, LLC
PEABODY TWENTYMILE MINING, LLC
PEC EQUIPMENT COMPANY, LLC
SAGE CREEK HOLDINGS, LLC
SENECA COAL COMPANY, LLC

By: /s/ Scott T. Jarboe                    
Name: Scott T. Jarboe
Title: Secretary


PEABODY WESTERN COAL COMPANY


By: /s/ Eric R. Waller                    
Name: Eric R. Waller
Title: Secretary


PEABODY GLOBAL HOLDINGS, LLC


By: /s/ James A. Tichenor                    
Name: James A. Tichenor
Title: Vice President and Treasurer


[Signature Page to Amendment No. 7 to Credit Agreement]





JPMORGAN CHASE BANK, N.A., as Refinancing Revolving Lender and as a Lender


By: /s/ Peter S. Predun____________________________
Name:    Peter S. Predun
Title:    Executive Director


[Signature Page to Amendment No. 7 to Credit Agreement]





GOLDMAN SACHS BANK USA, as Refinancing Revolving Lender and as a Lender


By: /s/ Thomas M. Manning______________________
Name:    Thomas M. Manning
Title:    Authorized Signatory


[Signature Page to Amendment No. 7 to Credit Agreement]



CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Refinancing Revolving Lender and as a Lender


By: /s/ Mikhail Faybusovich_______________________
Name:    Mikhail Faybusovich
Title:    Authorized Signatory


By: /s/ Christopher Zybrick_______________________
Name:    Christopher Zybrick
Title:    Authorized Signatory


[Signature Page to Amendment No. 7 to Credit Agreement]



DEUTSCHE BANK AG NEW YORK BRANCH, as Refinancing Revolving Lender and as a Lender


By: /s/ Michael Strobel__________________________
Name:    Michael Strobel
Title:    Vice President


By: /s/ Yumi Okabe__________________________
Name:    Yumi Okabe
Title:    Vice President



[Signature Page to Amendment No. 7 to Credit Agreement]



Bank of Montreal, Chicago Branch, as Refinancing Revolving Lender and as a Lender


By: /s/ Paul Heikkila____________________________
Name:    Paul Heikkila
Title:    Director


[Signature Page to Amendment No. 7 to Credit Agreement]




REGIONS BANK, as Refinancing Revolving Lender and as a Lender


By: /s/ Tedrick Tarver____________________________
Name:    Tedrick Tarver
Title:    Director


[Signature Page to Amendment No. 7 to Credit Agreement]



COMMERCE BANK, as Refinancing Revolving Lender and as a Lender


By: /s/ Anthony Clarkson________________________
Name:    Anthony Clarkson
Title:    Sr. Vice President


[Signature Page to Amendment No. 7 to Credit Agreement]




BANK OF AMERICA, N.A., as a 2019 Incremental Revolving Lender


By: /s/ Christopher DiBiase________________________
Name:    Christopher DiBiase
Title:    Director



[Signature Page to Amendment No. 7 to Credit Agreement]



BANK OF AMERICA, N.A., as Refinancing Revolving Lender and as a Lender


By: /s/ Christopher DiBiase________________________
Name:    Christopher DiBiase
Title:    Director



[Signature Page to Amendment No. 7 to Credit Agreement]



SCHEDULE I
Additional 2019 Incremental Revolving Commitment
2019 Incremental Revolving Lenders
2019 Incremental Revolving Commitments
 
Bank of America, N.A.
$20,000,000
 


Refinancing Revolving Commitments

Refinancing Revolving Lenders
Refinancing Revolving Commitments
L/C Issuance Limit
 
Goldman Sachs Bank USA
$75,000,000
$100,000,000
 
JPMorgan Chase Bank, N.A.
$75,000,000
$100,000,000
 
Credit Suisse AG, Cayman Islands Branch
$75,000,000
$75,000,000
 
Bank of Montreal, Chicago Branch
$75,000,000
$75,000,000
 





Refinancing Revolving Lenders
Refinancing Revolving Commitments
L/C Issuance Limit
 
Regions Bank
$75,000,000
N/A
 
Commerce Bank
$40,000,000
$100,000,000
 
Deutsche Bank AG New York Branch
$75,000,000
$75,000,000
 
Bank of America, N.A.
$50,000,000
$50,000,000
 
TOTAL
$540,000,000
 
 
 
 







Exhibit A
Credit Agreement

Attached.





CONFORMED THROUGH AMENDMENT NO. 1, AMENDMENT NO. 2, AMENDMENT NO. 3, AMENDMENT NO. 4, AMENDMENT NO. 5, TECHNICAL AMENDMENT, AMENDMENT NO. 6 AND PROPOSED AMENDMENT NO. 7
CONFORMED TO INCLUDE
FIRST AMENDMENT, DATED SEPTEMBER 18, 2017,
SECOND AMENDMENT, DATED NOVEMBER 17, 2017,
THIRD AMENDMENT, DATED DECEMBER 18, 2017,
FOURTH AMENDMENT, DATED APRIL 11, 2018,
FIFTH AMENDMENT, DATED JUNE 27, 2018 AND
TECHNICAL AMENDMENT, DATED JULY 19, 2018




CREDIT AGREEMENT

among

PEABODY ENERGY CORPORATION,
as Borrower,

GOLDMAN SACHSJPMORGAN CHASE BANK USA, N.A.,
as Administrative Agent,
and
The Other Lenders Party Hereto


Dated as of April 3, 2017



GOLDMAN SACHS BANK USA,
JPMORGAN CHASE BANK, N.A.,
GOLDMAN SACHS BANK USA,
BMO CAPITAL MARKETS CORP.,
CREDIT SUISSE LOAN FUNDING LLC,
DEUTSCHE BANK SECURITIES INC.,
REGIONS CAPITAL MARKETS,

and

CREDIT SUISSEBOFA SECURITIES (USA) LLC, INC.,
as Joint Lead Arrangers and Joint Bookrunners, as of the Seventh Amendment Effective Date



GOLDMAN SACHS BANK USA,
as Syndication Agent,
and
JPMORGAN CHASE BANK, N.A.,
CREDIT SUISSE AG,


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3

and
MACQUARIE CAPITAL (GOLDMAN SACHS BANK USA) INC.,
as Co-Syndication Agents, as of the Seventh Amendment Effective Date
as Co-Documentation Agentsand
COMMERCE BANK,
as Documentation Agent, as of the Seventh Amendment Effective Date




 

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TABLE OF CONTENTS
Section
 
Page
 
 
 
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
1
1.01
Defined Terms
1
1.02
Other Interpretive Provisions
54
1.03
Accounting Terms
54
1.04
Exchange Rates; Currency Equivalents
55
1.05
Additional Alternative Currencies
56
1.06
Change of Currency
56
1.07
Times of Day
57
1.08
Letter of Credit Amounts
57
1.09
Negative Covenant Compliance
57
1.10
Divisions
57
1.11
Interest Rates; LIBOR Notification
57
 
 
 
ARTICLE II. THE COMMITMENTS AND BORROWINGS
57
2.01
The Loans
5758
2.02
Borrowings, Conversions and Continuations of the Loans
58
2.03
Letters of Credit
60
2.04
[Reserved]
6970
2.05
Prepayments and Commitment Reductions
6970
2.06
Optional Termination or Reduction of Revolving Credit Commitments
74
2.07
Repayment of Loans
75
2.08
Interest
76
2.09
Fees
7776
2.10
Computation of Interest and Fees
7877
2.11
Evidence of Debt
7877
2.12
Payments Generally; Administrative Agent's Clawback
7877
2.13
Pro Rata; Sharing of Payments by Lenders
8079
2.14
[Reserved]
8180
2.15
Incremental Debt
8180
2.16
Refinancing Debt
8483
2.17
Cash Collateral
8685
2.18
Defaulting Lenders
8786
2.19
Dutch Auction Repurchases
8887
2.20
Open Market Repurchases
9089
 
 
 
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
90
3.01
Taxes
90
3.02
Illegality
9493
3.03
Inability to Determine Rates
94
3.04
Increased Costs; Reserves on Eurocurrency Rate Loans
9594
3.05
Compensation for Losses
9796
3.06
Mitigation Obligations; Replacement of Lenders
9897
3.07
Survival
9897

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ARTICLE IV. CONDITIONS PRECEDENT
98
4.01
Closing Date
98
4.02
Conditions to all Credit Extensions (Including on the ClosingSeventh Amendment Effective Date)
104103
 
 
 
ARTICLE V. REPRESENTATIONS AND WARRANTIES
104
5.01
Existence, Qualification and Power
105104
5.02
Authorization; No Contravention
105104
5.03
Governmental Authorization
105
5.04
Binding Effect
105
5.05
Financial Statements; No Material Adverse Effect
106105
5.06
Litigation
106
5.07
No Default
106
5.08
Ownership and Identification of Property
106
5.09
Environmental Compliance
107
5.10
Insurance
108107
5.11
Taxes
108
5.12
ERISA Compliance
108
5.13
Subsidiaries
109108
5.14
Margin Regulations; Investment Company Act
109108
5.15
Disclosure
109
5.16
Compliance with Laws
109
5.17
Anti-Corruption; Sanctions; Terrorism Laws
110109
5.18
Intellectual Property; Licenses, Etc.
110
5.19
Security Documents
111110
5.20
Mines
111
5.21
Solvency
111
5.22
Labor Relations
111
 
 
 
ARTICLE VI. AFFIRMATIVE COVENANTS
112111
6.01
Financial Statements
112111
6.02
Certificates; Other Information
112
6.03
Notices
114113
6.04
Payment of Tax Obligations
114
6.05
Preservation of Existence
115114
6.06
Maintenance of Properties
115114
6.07
Maintenance of Insurance
115114
6.08
Compliance with Laws
115
6.09
Books and Records
116115
6.10
Inspection Rights
116115
6.11
Use of Proceeds
116
6.12
Additional Guarantors
117116
6.13
Unrestricted Subsidiaries
117116
6.14
Preparation of Environmental Reports
117
6.15
Certain Long Term Liabilities and environmental Reserves
117
6.16
Covenant to Give Security
118117
6.17
Maintenance of Ratings
121120

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6.18
Post Closing Covenants
121120
6.19
ERISA
121120
 
 
 
ARTICLE VII. NEGATIVE COVENANTS
121
7.01
Liens
121
7.02
Investments
124123
7.03
Indebtedness
126
7.04
Fundamental Changes
130
7.05
Dispositions
131130
7.06
Restricted Payments
133132
7.07
Change in Nature of Business
135134
7.08
Transactions with Affiliates
135134
7.09
[Reserved]
136135
7.10
Use of Proceeds
136135
7.11
Financial Covenant
136
7.12
Burdensome Agreements
136
7.13
Restrictions of Specified Subsidiaries
137
7.14
[Reserved]
138137
7.15
Fiscal Year
138137
7.16
Sale and Lease-Backs
138
7.17
Amendments or Waivers of Organizational Documents
138
7.18
RestructuringPermitted PRB-CO Joint Venture Transactions
138
7.19
Permitted Australian Restructuring Transactions
139
 
 
 
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
139138
8.01
Events of Default
139138
8.02
Remedies Upon Event of Default
141
8.03
Exclusion of Immaterial Subsidiaries
142141
8.04
Application of Funds
142141
 
 
 
ARTICLE IX. ADMINISTRATIVE AGENT
143
9.01
Appointment and Authority
143
9.02
Rights as a Lender
143
9.03
Exculpatory Provisions
144143
9.04
Reliance by Administrative Agent
145
9.05
Delegation of Duties
145
9.06
Resignation of Administrative Agent
146145
9.07
Non-Reliance on Administrative Agent and Other Lenders .
147146
9.08
No Other Duties, Etc
148147
9.09
Administrative Agent May File Proofs of Claim
148147
9.10
Guaranty and Collateral Matters
149148
9.11
Withholding Tax
149
9.12
Intercreditor AgreementsCollateral Trust Agreement, Collateral Matters and Specified Amendments
150149
9.13
Certain ERISA Matters
151150

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ARTICLE X. MISCELLANEOUS
153151
10.01
Amendments, Etc
153151
10.02
Notices; Effectiveness; Electronic Communication
156155
10.03
No Waiver; Cumulative Remedies
159158
10.04
Expenses; Indemnity; Damage Waiver
159158
10.05
Marshalling; Payments Set Aside
162161
10.06
Successors and Assigns
162161
10.07
Treatment of Certain Information; Confidentiality
167166
10.08
Right of Setoff
168167
10.09
usury Savings Clause
169168
10.10
Counterparts; Integration; Effectiveness
170168
10.11
Survival of Representations, Warranties
170169
10.12
Servability
170169
10.13
Replacement of Lenders
170169
10.14
Governing Law; Jurisdiction; Etc
172170
10.15
Waiver of Jury Trial
172171
10.16
USA PATRIOT Act Notice
173172
10.17
Time of the Essence
173172
10.18
[Reserved]
173172
10.19
No Advisory or Fiduciary Responsibility
173172
10.20
[Reserved]
174173
10.21
Release of Liens and Release from Guaranty
174173
10.22
Independence of Covenants
175174
10.23
Independent Nature of Lenders' Rights
175174
10.24
Acknowledgment and and Consent to Bail-In of EEA Financial Institutions
176175
10.25
Original Issue Discount
176175
10.26
Acknowledgment Regarding Any Supported QFC's
175



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SCHEDULES
1.01(a)
Guarantors
1.01(b)
Unrestricted Subsidiaries
1.01(c)
Excluded Equity Interests
1.01(d)
Real Property Marketed for Sale
1.01(e)
Reserve Areas
1.01(f)
PRB-CO Joint Venture Transactions
1.01(g)
Existing Letters of Credit
2.01
Commitments
5.08(b)
Fee Owned Material Real Property
5.08(c)
Leased Material Real Property
5.08(d)
Material Real Property for Title Opinions
5.09
Environmental Matters
5.13
Subsidiaries
5.18
Intellectual Property
5.20
Mines
6.18
Post Closing Covenants
7.01
Existing Liens
7.02
Existing Investments
7.03
Existing Indebtedness
7.05
Specified Dispositions
7.08
Transactions with Affiliates
7.12
Burdensome Agreements
10.02
Administrative Agent’s Office; Certain Addresses for Notices
10.06
Processing and Recordation Fees
EXHIBITS
    Form of:
A    Borrowing Notice
B    [Reserved]
C-1    Term Note
C-2    Incremental Revolving Note
D    Amended and Restated Compliance Certificate
E    Assignment and Assumption
F    Guaranty
G    Security Agreement[Reserved]
H-1    Opinion of Jones Day
H-2    Opinion of Triay Stagnetto Neish
H-3    Opinion of Bingham Greenebaum Doll LLP
I-1    Collateral Trust Agreement[Reserved]
J    Mortgage
K    Solvency Certificate
L    Auction Procedures
M-1    U.S. Tax Compliance Certificate

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M-2    U.S. Tax Compliance Certificate
M-3    U.S. Tax Compliance Certificate
M-4    U.S. Tax Compliance Certificate



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CREDIT AGREEMENT
This CREDIT AGREEMENT (as amended, restated, extended, supplemented or otherwise modified, the “Agreement”) is entered into as of April 3, 2017, among, inter alios, PEABODY ENERGY CORPORATION, a Delaware corporation (the “Borrower”), each lender from time to time party hereto (collectively, the “Lenders” and, individually, a “Lender”), GOLDMAN SACHS BANK USA, as Administrative Agent, GOLDMAN SACHS BANK USA, J.P. MORGAN CHASE BANK, N.A. and CREDIT SUISSE SECURITIES (USA) LLC, as joint lead arrangers and joint bookrunners, GOLDMAN SACHS BANK USA, as syndication agent (in such capacity, the “Syndication Agent”), and JPMORGAN CHASE BANK, N.A., CREDIT SUISSE AG AND MACQUARIE CAPITAL (USA) INC., as co-documentation agents (in such capacities, the “Documentation Agents”).and JPMorgan Chase Bank, N.A. as administrative agent.
PRELIMINARY STATEMENTS
The Borrower, together with certain of its wholly-owned Domestic Subsidiaries and one subsidiary organized under the laws of Gibraltar (collectively, the “Debtors”), each filed a voluntary petition for relief under Chapter 11 of Title 11 of the United States Code on April 13, 2016.
Pursuant to the Confirmation Order, entered on March 17, 2017, the Bankruptcy Court confirmed the Debtors’ Plan of Reorganization, and the Debtors will emerge from the Bankruptcy Cases pursuant thereto (the “Exit”) on the Closing Date.
The Borrower has requested that on the Closing Date, the Term Lenders make Term Loans to the Borrower to finance a portion of the Transactions and to pay fees and expenses in connection with the Transactions (the “Transaction Costs”) and the Term Lenders have agreed to provide such Term Loans on the terms and subject to the conditions set forth herein.
The Borrower has requested that, on the Second Amendment Effective Date and the Third Amendment Effective Date, the Incremental Revolving Lenders party to the Second Amendment and the Third Amendment, as applicable, make Incremental Revolving Commitments to the Borrower for general working capital purposes (including the issuance of Letters of Credit and Bank Guarantees), and such Incremental Revolving Lenders have agreed to provide such Incremental Revolving Commitments on the terms and subject to the conditions set forth herein and in the Second Amendment or the Third Amendment, as applicable.
The Borrower has requested that, on the Seventh Amendment Effective Date, (a) the Refinancing Revolving Lenders party to the Seventh Amendment, make Refinancing Revolving Commitments (as defined therein) to the Borrower and such Refinancing Revolving Lenders have agreed to provide such Refinancing Revolving Commitments on the terms and subject to the conditions set forth herein and in the Seventh Amendment, and the letters of credit identified on Schedule 1.01(g) hereto as of the Seventh Amendment Effective Date (the “Existing Letters of Credit”) shall be deemed to be Letters of Credit for all purposes under this Agreement.

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In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
Article I
DEFINITIONS AND ACCOUNTING TERMS
1.01    Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
2017 Incremental Revolving Facility” has the meaning specified in the Second Amendment, as increased pursuant to the Third Amendment.
“2019 Refinancing Revolving Facility” means the Refinancing Revolving Facility provided by the Revolving Lenders party to the Seventh Amendment.
A$” means the lawful currency of Australia.
ABL Agent(s)” means each administrative agent, collateral agent, collateral trustee or other representative of the holders of ABL Obligations with respect to any ABL Facility.
ABL Credit Documents” means the instruments or agreements executed in connection with any ABL Facility (including all security agreements, collateral assignments, mortgages, control agreements or other grants or transfers for security in favor of any ABL Agent, for the benefit of the holders of ABL Obligations) and any instrument or agreement executed in connection with any refinancings and replacements thereof to the extent permitted under the ABL Intercreditor Agreement, as each such instrument or agreement may be amended, restated, supplemented, replaced or otherwise modified from time to time in accordance with the ABL Intercreditor Agreement.
ABL Facility” means one or more asset based lending facilities; provided that the aggregate principal amount outstanding of all ABL Facilities, together with the aggregate principal amount (or similar amount) outstanding under any Permitted Securitization Program, shall not exceed the greater of $250,000,000 and 3.5% of Consolidated Net Tangible Assets; provided, further, that no ABL Facility will be permitted at any time that any Incremental Revolving Commitments are in effect.
ABL Intercreditor Agreement” means an intercreditor agreement to be entered into between the ABL Agent, the Collateral Trustee and the Junior Collateral Trustee that sets forth the relative priority of the Priority Liens and the Junior Liens (as each term is defined in the Collateral Trust Agreement), on the one hand, compared to the ABL Liens (as defined in the Collateral Trust Agreement), on the other hand, on substantially the terms described in Section 7.25 of the Collateral Trust Agreement and otherwise in accordance with Section 7.25 of the Collateral Trust Agreement, as the same may be amended, restated, supplemented or otherwise modified from time to time.
ABL Obligations” means all debts, liabilities and obligations incurred by the Borrower or any Subsidiary under the ABL Credit Documents.

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ABL Priority Collateral” has the meaning assigned to “ABL Priority Collateral” in the Collateral Trust Agreement.
Accepting Lenders” has the meaning specified in Section 10.01(g).
Accounting Change” means changes in accounting principles after the ClosingSeventh Amendment Effective Date required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board or, if applicable, the SEC.
Acquisition Agreement” means, with respect to any Permitted Acquisition, the definitive documentation for such Permitted Acquisition.
Acquisition Agreement Representations” means, with respect to any Acquisition Agreement, the representations and warranties made by or with respect to the Person to be acquired or selling its assets pursuant to such Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that (a) the accuracy of any such representation or warranty is a condition to the Borrower’s or its Restricted Subsidiary’s obligations to close under the Acquisition Agreement or (b) the Borrower or the Restricted Subsidiary has the right to terminate its obligations under the Acquisition Agreement as a result of a breach of such representations and warranties.
Additional Extensions of Credit” has the meaning specified in Section 10.01.
Administrative Agent” means Goldman SachsJPMorgan Chase Bank USA, N.A., in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02, or such other address or account as the Administrative Agent may from time to time notify to the Borrower and the Lenders.
Administrative Questionnaire” means an administrative questionnaire in a form supplied by the Administrative Agent.
Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
Agent Parties” has the meaning specified in Section 10.02(c).
Agents” means the Administrative Agent, the Syndication Agent and the Documentation AgentsAgent.
Aggregate Commitments” means the Commitments of all the Lenders.
Agreement” has the meaning specified in the introductory paragraph to this Agreement.

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Alternative Currency” means each of Euro, Sterling, A$ and each other currency (other than Dollars) that is approved in accordance with Section 1.05.
Alternative Currency Equivalent” means, at any date, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Alternative Currency with Dollars on such date.
Anti-Corruption Laws” has the meaning specified in Section 5.17.
Applicable Percentage” means (a) in respect of the Term Loan Facility, with respect to any Term Lender at any time, the percentage (carried out to the tenth decimal place) of the Term Loan Facility represented by (i) until the Closing Date, such Term Lender’s respective Term Loan Commitments and (ii) thereafter, the aggregate principal amount of such Term Lender’s Term Loans then outstanding, and (b) in respect of the Incremental Revolving FacilitiesFacility, with respect to any Incremental Revolving Lender at any time, the percentage (carried out to the ninth decimal place) of the then available Incremental Revolving FacilitiesFacility represented by such Incremental Revolving Lender’s Incremental Revolving Commitment at such time. If the commitment of each Incremental Revolving Lender to make Incremental Revolving Loans and the obligation of the L/C Issuers to make L/C Credit Extensions have been terminated pursuant to Section 8.02, or if the Incremental Revolving Commitments have expired, then the Applicable Percentage of each Incremental Revolving Lender in respect of the Incremental Revolving FacilitiesFacility shall be determined based on the Applicable Percentage of such Incremental Revolving Lender in respect of the Incremental Revolving FacilitiesFacility most recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each Term Lender in respect of the Term Loan Facility as of the Closing Date is set forth opposite the name of such Term Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Term Lender becomes a party hereto, as applicable. The Applicable Percentage of each Incremental Revolving Lender in respect of the Incremental Revolving Facility as of the ThirdSeventh Amendment Effective Date is set forth opposite the name of such Incremental Revolving Lender on Schedule 3I to the ThirdSeventh Amendment or in the Assignment and Assumption pursuant to which such Incremental Revolving Lender becomes a party hereto, as applicable.
Applicable Rate” means:
(a)    (a) with respect to the Term Loan Facility, a percentage per annum equal to (i) 2.75% for Eurocurrency Rate Loans and (ii) 1.75% for Base Rate Loans and;
(b)    (b) with respect to the 2017 Incremental Revolving FacilitiesFacility, a percentage per annum equal to (i) 3.25% for Eurocurrency Rate Loans and (ii) 2.25% for Base Rate Loans. For the avoidance of doubt, the Applicable Rate with respect to the Term Loan Facility as in effect for all dates occurring (i) prior to the First Amendment Effective Date shall be the “Applicable Rate” as defined in this Agreement immediately prior to giving effect to the First Amendment and (ii) during the period commencing on the First Amendment Effective Date and ending on the date immediately prior to the Fourth Amendment Effective Date shall be

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the “Applicable Rate” as defined in this Agreement immediately prior to giving effect to the Fourth Amendment.; and
(c)    with respect to the 2019 Refinancing Revolving Facility:
(i)    until delivery of financial statements and a related Compliance Certificate for the first full fiscal quarter of the Borrower ending after the Seventh Amendment Effective Date pursuant to Section 6.02, (1) for Revolving Loans that are Eurocurrency Rate Loans, 3.25% and (2) for Revolving Loans that are Base Rate Loans, 2.25% and
(ii)    thereafter, the percentages per annum set forth in the table below, based upon the First Lien Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02:
First Lien Leverage Ratio
Applicable Rate for Revolving Loans that are Eurocurrency Rate Loans
Applicable Rate for Revolving Loans that are Base Rate Loans
< 0.50 to 1.00
2.75%
1.75%
> 0.50 to 1.00 but
≤ 1.50 to 1.00
3.00%
2.00%
> 1.50 to 1.00
3.25%
2.25%

Any increase or decrease in the Applicable Rate resulting from a change in the First Lien Leverage Ratio shall become effective as of the first Business Day immediately following the most recent delivery of a Compliance Certificate pursuant to Section 6.02.
Notwithstanding the foregoing, (a) the Applicable Rate in respect of any Class of Incremental Term Loans shall be the applicable percentages per annum set forth in the relevant Incremental Amendment, (b) the Applicable Rate in respect of any Class of Loans under any Refinancing Term Facility shall be the applicable percentages per annum set forth in the relevant agreement and (c) in the case of the Term Loans and any Class of Incremental Term Loans, the Applicable Rate shall be increased as, and to the extent, necessary to comply with the provisions of Section 2.15(e).
Notwithstanding anything to the contrary contained above in this definition or elsewhere in this Agreement, if it is subsequently determined that the First Lien Leverage Ratio set forth in any Compliance Certificate delivered to the Administrative Agent is inaccurate for any reason and the result thereof is that the Lenders received interest for any period based on an Applicable Rate that is less than that which would have been applicable had the First Lien Leverage Ratio been accurately determined, then, for all purposes of this

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Agreement, the Applicable Rate for any day occurring within the period covered by such Compliance Certificate shall retroactively be deemed to be the relevant percentage as based upon the accurately determined First Lien Leverage Ratio for such period, and any shortfall in the interest theretofore paid by the Borrower for the relevant period as a result of the miscalculation of the First Lien Leverage Ratio shall be deemed to be (and shall be) due and payable, at the time the interest for such period were required to be paid. In addition, if the Borrower shall have failed to deliver any of the financial statements within one (1) Business Day after the applicable date required under Section 6.01, then, the First Lien Leverage Ratio shall be deemed to be greater than 1.50 to 1.00 for the purposes of determining the Applicable Rate for Revolving Loans (only for so long as such failure continues, after which such ratio shall be determined based on the First Lien Leverage Ratio as set forth in the most recently delivered financial statements).
Applicable Reserve Requirement” means, at any time, for any Eurocurrency Rate Loan, the maximum rate, expressed as a decimal, at which reserves (including any basic marginal, special, supplemental, emergency or other reserves) are required to be maintained with respect thereto against “Eurocurrency liabilities” (as such term is defined in Regulation D) under regulations issued from time to time by the Board of Governors or other applicable banking regulator. Without limiting the effect of the foregoing, the Applicable Reserve Requirement shall reflect any other reserves required to be maintained by such member banks with respect to (i) any category of liabilities which includes deposits by reference to which the applicable Eurocurrency Rate or any other interest rate of a Loan is to be determined, or (ii) any category of extensions of credit or other assets which include Eurocurrency Rate Loans. A Eurocurrency Rate Loan shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credit for proration, exceptions or offsets that may be available from time to time to the applicable Lender. The rate of interest on Eurocurrency Rate Loans shall be adjusted automatically on and as of the effective date of any change in the Applicable Reserve Requirement.
Applicable Time” means, with respect to any payments in any Alternative Currency, a New York City time reasonably determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, subject to the Administrative Agent or such L/C Issuer providing advance notice to the Borrower that such time is necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payments.
Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
Arrangers” means (a) Goldman Sachs Bank USA, JPMorgan Chase Bank, N.A. and Credit Suisse Securities (USA) LLC, each in its capacity as joint lead arranger and joint bookrunner as of the Closing Date, (b) Goldman Sachs Bank USA, BMO Capital Markets, Credit Suisse Securities (USA) LLC and JPMorgan Chase Bank, N.A., each in its capacity as joint lead arranger and joint bookrunner for the 2017 Incremental Revolving Facility and, (c) Goldman Sachs Bank USA, JPMorgan Chase Bank, N.A., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc. and BMO Capital Markets Corp., each in its capacity as joint lead arranger and joint bookrunner for the Term Loans made (or deemed made) on the Fourth Amendment

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Effective Date., and JPMorgan Chase Bank, N.A., Goldman Sachs Bank USA, BMO Capital Markets Corp., Credit Suisse Loan Funding LLC, Deutsche Bank Securities Inc., Regions Capital Markets and BofA Securities, Inc., each in its capacity as a joint lead arranger and joint bookrunner as of the Seventh Amendment Effective Date.
Asset Sale” means any Disposition or series of related Dispositions of property by the Borrower or any of its Restricted Subsidiaries to any Person; provided that “Asset Sale” shall exclude any Disposition or series of related Dispositions with a fair market value (as reasonably determined by the Borrower in good faith) of less than $10,000,000; provided, further, that “Asset Sale” shall exclude the sale or discount of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof.
Asset Sale Sweep Provision” has the meaning specified in Section 2.05(e).
Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.
Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.06(b), and accepted by the Administrative Agent) in substantially the form of Exhibit E or any other form approved by the Administrative Agent, in accordance with Section 10.06(b).
Attributable Indebtedness” means, on any date, in respect of any Capital Lease Obligations of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.
Auction” has the meaning specified in Section 2.19(a).
Auction Manager” has the meaning specified in Section 2.19(a).
Auction Procedures” means the procedures for conducting any Auction set forth on Exhibit L, subject to modification as mutually determined by the Borrower and the Auction Manager and consented to by the Administrative Agent (such consent not to be unreasonably withheld or delayed).
Audited Financial Statements” means the audited consolidated balance sheet of the Borrower and its Subsidiaries for each of the fiscal years ended December 31, 20162018, December 31, 20152017 and December 31, 20142016 and the related consolidated statements of income or operations, changes in shareholders’ equity and cash flows for such fiscal yearthe year ended December 31, 2018, the period from April 2, 2017 through December 31, 2017, the period from January 1, 2017 through April 1, 2017 and the year ended December 31, 2016, of the Borrower and its Subsidiaries, including the notes thereto.
Availability Period” means in respect of each Incrementalthe Revolving Facility, the period from and including the SecondSeventh Amendment Effective Date (or, with respect to any Incremental Revolving Facility other than the 2017 Incremental Revolving Facility, the applicable Incremental Facility Effective Date) to the earliest of (a) the Incremental Revolving Facility Maturity Date, (b) the date of termination of the Incremental Revolving Commitments

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pursuant to Section 2.06 and (c) the date of termination of the commitment of each Lender to make Loans and of the obligation of the L/C Issuers to make L/C Credit Extensions pursuant to Section 8.02.
Authorization Order” means that certain Order (I) Authorizing the Debtors to (A) Enter into Exit Financing Commitment Letter and Related Agreements and (B) Incur and Pay Certain Related Fees and/or Premiums, Indemnities, Costs and Expenses; and (II) Granting Related Relief, as entered in the Bankruptcy Court on January 27, 2017, Docket No. 2225.
Backstop Commitment Agreement” means that certain Backstop Commitment Agreement, dated as of December 22, 2016, by and among the Borrower and each Commitment Party (as defined therein).
Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
Bank Guarantee” means a direct guaranty or undertaking issued for the account of the Borrower pursuant to this Agreement by an L/C Issuer in form acceptable to such L/C Issuer issued to provide credit support to the Borrower or any of its Restricted Subsidiaries.
Bankruptcy Cases” means the cases of Borrower and certain of its direct and indirect wholly-owned Domestic Subsidiaries and one subsidiary organized under the laws of Gibraltar in the United States Bankruptcy Court for the Eastern District of Missouri under Chapter 11 of Title 11 of the United States Code consolidated under Case No. 16-42529.
Bankruptcy Court” means the United States Bankruptcy Court for the Eastern District of Missouri and, to the extent of the withdrawal of any reference under 28 U.S.C. § 157, the United States District Court for the Eastern District of Missouri.
Base Rate” means, for any day, a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 0.50%, (b) the Eurocurrency Rate (after giving effect to any Eurocurrency Rate “floor”) that would be payable on such day for a Eurocurrency Rate Loan with a one month Interest Period plus 1%, and (c)greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus ½ of 1% and (c) the Eurocurrency Rate for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%; provided that for the purpose of this definition, the Eurocurrency Rate for any day shall be based on the LIBO Screen Rate (or if the LIBO Screen Rate is not available for such one month Interest Period, the Interpolated Rate) at approximately 11:00 a.m. London time on such day. Any change in the Base Rate due to a change in the Prime Rate,

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the NYFRB Rate or the Federal FundsEurocurrency Rate shall be effective onfrom and including the effective daydate of such change in the Prime Rate, the NYFRB Rate or the Federal FundsEurocurrency Rate, respectively. If, at any time, the Base Rate is being used as an alternate rate of interest pursuant to Section 3.03, then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above. For the avoidance of doubt, if the Base Rate as determined pursuant to the foregoing would be less than zero, the Base Rate1.00%, such rate shall be deemed to be zero at such time1.00% for purposes of this Agreement.
Base Rate Loan” means a Term Loan or an Incrementala Revolving Loan that bears interest based on the Base Rate, as applicable.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership or control as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
Borrower” has the meaning specified in the introductory paragraph hereto.
Borrower Materials” has the meaning specified in Section 6.02.
Borrowing” means an Incrementala Revolving Borrowing or a Term Loan Borrowing, as the context may require.
Borrowing Notice” means a notice of (a) a Term Loan Borrowing, (b) an Incrementala Revolving Borrowing, (c) a conversion of Term Loans or Incremental Revolving Loans from one Type to the other or (d) a continuation of Eurocurrency Rate Loans, in each case, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.
Building” means a Building as defined in 12 CFR Chapter III, Section 339.2.
Business Day” means (i) any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in such state are authorized or required by law or other governmental action to close and (ii) with respect to all notices, determinations, fundings and payments in connection with the Eurocurrency Rate or any Eurocurrency Rate Loans, the term “Business Day” means any day which is a Business Day described in clause (i) and which is also a day for trading by and between banks in Dollar deposits in the London interbank market.
Capital Expenditure” means any expenditure that, in accordance with GAAP, is or should be included in “purchase of property and equipment” or similar items, or which should otherwise be capitalized, reflected in the consolidated statement of cash flows of the Borrower and its Restricted Subsidiaries; provided that Capital Expenditure shall not include any expenditure (i) for replacements and substitutions for fixed assets, capital assets or equipment to the extent made with

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Net Insurance/Condemnation Proceeds invested pursuant to Section 2.05(h) or with Net Proceeds invested pursuant to Section 2.05(e) or (ii) which constitute a Permitted Acquisition.
Capital Lease Obligations” means of any Person as of the date of determination, the aggregate liability of such Person under Financing Leases reflected on a balance sheet of such Person under GAAP.
Capital Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants or options to purchase any of the foregoing, but excluding any securities convertible into or exchangeable for shares of Capital Stock.
Cash Collateralize” has the meaning specified in Section 2.17(a) and “Cash Collateral” shall have a correlative meaning.
Cash Equivalents” means
(a)
U.S. Government Obligations or certificates representing an ownership interest in U.S. Government Obligations with maturities not exceeding two years from the date of acquisition,
(b)
(i) demand deposits, (ii) time deposits and certificates of deposit with maturities of two years or less from the date of acquisition, (iii) bankers’ acceptances with maturities not exceeding two years from the date of acquisition, and (iv) overnight bank deposits, in each case with any bank or trust company organized or licensed under the laws of the United States or any state thereof (including any branch of a foreign bank licensed under any such laws) having capital, surplus and undivided profits in excess of $250,000,000 (or the foreign currency equivalent thereof) whose short-term debt is rated A-2 or higher by S&P or P-2 or higher by Moody’s,
(c)
commercial paper maturing within 364 days from the date of acquisition thereof and having, at such date of acquisition, ratings of at least A-1 by S&P or P-1 by Moody’s,
(d)
readily marketable direct obligations issued by any state, commonwealth or territory of the U.S. or any political subdivision thereof, in each case rated at least A-1 by S&P or P-1 by Moody’s with maturities not exceeding one year from the date of acquisition,
(e)
bonds, debentures, notes or other obligations with maturities not exceeding two years from the date of acquisition issued by any corporation, partnership, limited liability company or similar entity whose long-term unsecured debt has a credit rate of A2 or better by Moody’s and A or better by S&P;
(f)
investment funds at least 95% of the assets of which consist of investments of the type described in clauses (a) through (e) above (determined without regard to the maturity and duration limits for such investments set forth in such clauses, provided

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that the weighted average maturity of all investments held by any such fund is two years or less),
(g)
fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (b) above and
(h)
in the case of a Restricted Subsidiary that is a Foreign Subsidiary, substantially similar investments, of comparable credit quality, denominated in the currency of any jurisdiction in which such Person conducts business.
Cash Management Agreement” means any agreement evidencing Cash Management Obligations.
Cash Management Bank” means any Person that (a) at the time it enters into a Cash Management Agreement, is a Lender, an Agent, an Arranger or an Affiliate of any of the foregoing or (b) becomes a Lender, an Agent, an Arranger or an Affiliate of any of the foregoing at any time after it has entered into a Cash Management Agreement.
Cash Management Obligations” means any and all obligations of the Borrower or any Restricted Subsidiary arising out of (a) the execution or processing of electronic transfers of funds by automatic clearing house transfer, wire transfer or otherwise to or from the deposit accounts of the Borrower and/or any Restricted Subsidiary, (b) the acceptance for deposit or the honoring for payment of any check, draft or other item with respect to any such deposit accounts, (c) any other treasury, deposit, disbursement, overdraft, and cash management services afforded to the Borrower or any Restricted Subsidiary, and (d) stored value card, commercial credit card and merchant card services.
Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request or directive (whether or not having the force of law) by any Governmental Authority required to be complied with by any Lender. For purposes of this definition, (x) the Dodd-Frank Act and any rules, regulations, orders, requests, guidelines and directives adopted, promulgated or implemented in connection therewith, and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to have been adopted, issued, promulgated or implemented after the ClosingSeventh Amendment Effective Date, but shall be included as a Change in Law only to the extent a Lender is imposing applicable increased costs or costs in connection with capital adequacy and other requirements similar to those described in Sections 3.04(a) and (b) generally on other similarly situated borrowers of loans under United States credit facilities.
Change of Control” means:
(a)    an event or series of events by which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any

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employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934), directly or indirectly, of 35% or more of the equity securities of the Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis; or
(b)    a “Change of Control” as defined in the Priority Lien Notes Indenture or the ABL Credit Documents, in each case, as amended, restated, modified, replaced, or refinanced from time to time.
Class” means (i) with respect to Lenders, each of the following classes of Lenders: (a) Term Lenders, (b) Incremental Term Lenders in respect of each applicable series of Incremental Term Loans, (c) Incremental Revolving Lenders and (d) Refinancing Facility Lenders in respect of each applicable series of Refinancing Loans and (ii) with respect to Loans, each of the following classes of Loans: (a) Term Loans, (b) each series of Incremental Term Loans, (c) Incremental Revolving Loans and (d) each series of Refinancing Loans.
Closing Date” means the date on which all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01 and the Term Loans are made, which occurred on April 3, 2017.
Closing Date Material Adverse Effect” means any circumstance or condition that individually or in the aggregate, would reasonably be expected to materially adversely affect (a) the business, assets, results of operations, properties or financial condition of the Borrower and its Restricted Subsidiaries taken as a whole, (b) the ability of the Borrower and the Guarantors, taken as a whole, to perform their payment obligations under this Agreement or the Guaranty or (c) the rights and remedies of the Administrative Agent, the Collateral Trustee and the Lenders under this Agreement or the other Loan Documents, in each case, except to the extent such event results from, arises out of, or is attributable to, the following (either alone or in combination): (i) any change after such date in global, national or regional political conditions (including hostilities, acts of war, sabotage, terrorism or military actions, or any escalation or material worsening of any such hostilities, acts of war, sabotage, terrorism or military actions existing or underway) or in the general business, market, financial or economic conditions affecting the industries, regions and markets in which the Loan Parties operate, including any change in the United States or applicable foreign economies or securities, commodities or financial markets, or force majeure events or “acts of God”; (ii) any changes after such date in applicable law or GAAP, or in the interpretation or enforcement thereof; (iii) the execution, announcement or performance of the transactions contemplated by the Plan of Reorganization (including any act or omission of the Loan Parties expressly required or prohibited, as applicable, by the Plan of Reorganization or consented to or required by the Requisite Members of the Noteholder Steering Committee (each as defined in the Plan of Reorganization) in writing); (iv) changes in the market price or trading volume of the claims or equity or debt securities of the Loan Parties (but not the underlying facts giving rise to such changes unless such facts are otherwise excluded pursuant to the clauses contained in this definition); (v) the departure of officers or directors of any of the Loan Parties not in contravention of the terms and

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conditions of the Plan Support Agreement or the Plan of Reorganization (but not the underlying facts giving rise to such departure unless such facts are otherwise excluded pursuant to the clauses contained in this definition); (vi) the filing or pendency of the Bankruptcy Cases (including events resulting from any filing made in such Bankruptcy Cases); or (vii) declarations of national emergencies in the United States or natural disasters in the United States; provided, that the exceptions set forth in clauses (i), (ii) and (vii) shall not apply to the extent that such event is materially and disproportionately adverse to the Loan Parties, taken as a whole, as compared to other companies in the industries in which the Loan Parties operate.
Code” means the Internal Revenue Code of 1986, as amended from time to time (unless as indicated otherwise).
Collateral” means, collectively, all of the real, personal and mixed property (including Equity Interests) in which Liens are purported to be granted pursuant to the Security Documents as security for all or any part of the Obligations (subject to exceptions contained in the Security Documents), in each case excluding any Excluded Assets.
Collateral Questionnaire” means a certificate in form reasonably satisfactory to Administrative Agent that provides information with respect to the personal or mixed property of each Loan Party.
Collateral Trust Agreement” means a collateral trust agreement substantially in the form of Exhibit I-1the Collateral Trust Agreement dated the Closing Date, among the Borrower, the Collateral Trustee and the other parties party thereto from time to time, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
Collateral Trustee” means Wilmington Trust, National Association and its successors and assigns as Collateral Trustee pursuant to the Collateral Trust Agreement.
Commitment” means a Term Loan Commitment, an Incrementala Revolving Commitment or corresponding commitment under another Facility, as the context may require.
“Commitment Fee Rate” shall mean a rate per annum equal to 0.50%; provided that, (other than with respect to the 2017 Incremental Revolving Facility) commencing on the first date of the first full fiscal quarter commencing after the Seventh Amendment Effective Date and for any day thereafter, the Commitment Fee Rate shall be the applicable rate per annum set forth in the table below, based upon the First Lien Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02:
First Lien Leverage Ratio
Commitment Fee Rate
< 0.50 to 1.00
0.375%
≥ 0.50 to 1.00 but ≤ 1.50 to 1.00
0.40%

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> 1.50 to 1.00
0.50%
Notwithstanding anything to the contrary contained above in this definition or elsewhere in this Agreement, if it is subsequently determined that the First Lien Leverage Ratio set forth in any Compliance Certificate delivered to the Administrative Agent is inaccurate for any reason and the result thereof is that the Lenders received commitment fees for any period based on a Commitment Fee Rate that is less than that which would have been applicable had the First Lien Leverage Ratio been accurately determined, then, for all purposes of this Agreement, the Commitment Fee Rate for any day occurring within the period covered by such Compliance Certificate shall retroactively be deemed to be the relevant percentage as based upon the accurately determined First Lien Leverage Ratio for such period, and any shortfall in the commitment fees theretofore paid by the Borrower for the relevant period as a result of the miscalculation of the First Lien Leverage Ratio shall be deemed to be (and shall be) due and payable, at the time the commitment fees for such period were required to be paid. In addition, if the Borrower shall have failed to deliver any of the financial statements within one (1) Business Day after the applicable date required under Section 6.01, then, the First Lien Leverage Ratio shall be deemed to be greater than 1.50 to 1.00 for the purposes of determining the Commitment Fee Rate (only for so long as such failure continues, after which such ratio shall be determined based on the First Lien Leverage Ratio as set forth in the most recently delivered financial statements).
Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended and any successor statute.
Compliance Certificate” means a certificate substantially in the form of Exhibit D.
Confirmation Order” means an order confirming the Plan of Reorganization, which confirmation order shall be, to the extent material to the Arrangers and the Lenders, in form and substance reasonably acceptable to each Arranger and Lender.
Consolidated Capital Expenditures” means, for any period, the aggregate of all Capital Expenditures of the Borrower and its Restricted Subsidiaries during such period determined on a consolidated basis in accordance with GAAP.
Consolidated EBITDA” means, as of the last day of any period, Consolidated Net Income for such period plus, without duplication, for such period (i) consolidated interest expense, determined in accordance with GAAP; (ii) to the extent deducted in computing such Consolidated Net Income, the sum of all income, franchise or similar taxes; (iii) depreciation, depletion, amortization (including, without limitation, amortization of intangibles, deferred financing fees and any amortization included in pension or other employee benefit expenses) and all other non-cash items reducing Consolidated Net Income (including, without limitation, write-downs and impairment of property, plant, equipment and intangibles and other long-lived assets and the impact of purchase accounting) but excluding, in each case, non-cash charges in a period which reflect cash expenses paid or to be paid in another period); (iv) non-recurring restructuring costs, expenses and charges, including, without limitation, all business optimization costs and expenses, facility opening, pre-opening and closing and consolidation costs and expenses, advisory and

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professional fees and stay and retention bonuses; (v) any expenses, costs or charges related to any equity offering, Investment permitted under Section 7.02, acquisition, disposition, recapitalization or Indebtedness permitted to be incurred by the indenture (whether or not successful); (vi) all non-recurring or unusual losses, charges and expenses (and less all non-recurring or unusual gains); (vii) all non-cash charges and expenses; (viii) any debt extinguishment costs; (ix) any amount of asset retirement obligations expenses; (x) transaction costs, fees and expenses incurred during such period in connection with any acquisition or disposition not prohibited hereunder or any issuance of debt or equity securities by the Borrower or any of its Restricted Subsidiaries, in each case, for such expenses; (xi) net after-tax losses attributable to asset sales, and net after-tax extraordinary losses; (xii) (a) mark-to-market gains (and less any mark-to-market losses) relating to any Hedging Agreements permitted hereunder and (b) any mark-to-market losses attributed to short positions in any actual or synthetic forward sales contracts relating to coal or any other similar device or instrument or other instrument classified as a "derivative" pursuant to FASB ASC Topic No. 815, Derivatives and Hedging and (xiii) commissions, premiums, discounts, fees or other charges relating to performance bonds, bid bonds, appeal bonds, surety bonds, reclamation and completion guarantees and other similar obligations; provided that, with respect to any Restricted Subsidiary, such items will be added only to the extent and in the same proportion that the relevant Restricted Subsidiary’s net income was included in calculating Consolidated Net Income.
Consolidated Net Income” means, for any period, the net income (or loss) attributable to the Borrower and its Restricted Subsidiaries for that period, determined in accordance with GAAP, excluding, without duplication, (a) noncash compensation expenses related to common stock and other equity securities issued to employees, (b) extraordinary or non-recurring gains and losses, (c) income or losses from discontinued operations or disposal of discontinued operations or costs and expenses associated with the closure of any mines (including any reclamation or disposal obligations), (d) any non-cash impairment charges or asset write-off resulting from the application of ASC 320 Investments-Debt and Equity Securities, ASC 323 Investments-Equity Method and Joint Ventures, ASC 350 Intangibles—Goodwill and Other and ASC 360 Property, Plant and Equipment and any future or similar ASC standards relating to impairment, (e) net unrealized gains or losses resulting in such period from non-cash foreign currency remeasurement gains or losses, (f) net unrealized gains or losses resulting in such period from the application ASC 815 Derivatives and Hedging, in each case, for such period, (g) non-cash charges including non-cash charges due to cumulative effects of changes in accounting principles, and (h) any net income (or loss) of the Borrower or a Restricted Subsidiary for such period that is accounted for by the equity method of accounting to the extent included therein; plus, without duplication, any cash dividends and/or distributions or other payments that are actually received by the Borrower or a Restricted Subsidiary from any Unrestricted Subsidiary and/or Joint Venture during such period to the extent not already included therein.
Consolidated Net Tangible Assets” means, as of any particular time, the total of all the assets appearing on the most recent consolidated balance sheet prepared in accordance with GAAP of the Borrower and the Restricted Subsidiaries as of the end of the last fiscal quarter for which financial information is available (less applicable reserves and other properly deductible items) after deducting from such amount (i) all current liabilities, including current maturities of long-term debt and current maturities of obligations under capital leases (other than any portion thereof maturing after, or renewable or extendable at the option of the Borrower or the relevant Restricted Subsidiary beyond, twelve months from the date of determination); and (ii) the total

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of the net book values of all assets of the Borrower and its Restricted Subsidiaries properly classified as intangible assets under GAAP (including goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangible assets).; provided that “Consolidated Net Tangible Assets”, from the Seventh Amendment Effective Date until the consummation of each of the actions contemplated by the PRB-CO Joint Venture Transactions, shall exclude all assets to be contributed to PRB-CO Joint Venture in connection with the PRB-CO Joint Venture Transactions and, after the occurrence of each of the PRB-CO Joint Venture Transactions, shall exclude all assets of PRB-CO Joint Venture (or the Borrower’s equity interest therein) irrespective of whether the PRB-CO Joint Venture is consolidated for other financial statement purposes.
Consolidated Net Total Debt” means, as of any date of determination, (a) the aggregate stated balance sheet amount of all Indebtedness described in clauses (a), (b), (c), (f) and (g) (with respect to Indebtedness described in clauses (a), (b), (c) and (f)) of the definition of the term “Indebtedness” of Borrower and its Restricted Subsidiaries (for the avoidance of doubt, for this purpose, letters of credit will be deemed to have a principal amount equal to the amount drawn and not reimbursed thereunder, if any) determined on a consolidated basis in accordance with GAAP, minus (b) the aggregate amount of Unrestricted Cash included in the consolidated balance sheet of Borrower and its Restricted Subsidiaries as of such date (other than the proceeds of Incremental Debt to be incurred on such date of determination).
Contract” has the meaning specified in the definition of Excluded Assets.
Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
Controlled Subsidiary” means, with respect to any consent, waiver or right to terminate or accelerate the obligations under a Contract, any Subsidiary that the Borrower directly or indirectly Controls for purposes of the provision of such consent, waiver or exercise of such right to terminate or accelerate the obligations under such Contract.
Convertible Securities” means the preferred stock of the Borrower issued pursuant to the Plan of Reorganization on the Closing Date which shall be convertible into common stock of the Borrower, in an aggregate amount of at least $750,000,000.
Copyright Security Agreement” means theeach Copyright Security Agreement, substantially in the form attached to the Security Agreement dated the Closing Date, or such other form of copyright security agreement reasonably acceptable to the Administrative Agent and the Borrower, by certain Loan Parties in favor of the Collateral Trustee, for the benefit of the Secured Parties.
“Covered Party” has the meaning assigned to it in Section 10.26.

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Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
Cumulative Amount” means at any time (the “Cumulative Amount Reference Time”), an amount (which shall not be less than zero) equal to, without duplication:
(i)    (x) the cumulative amount of Excess Cash Flow of the Borrower and its Restricted Subsidiaries for all fiscal years completed after the Closing Date (commencing with the portion of fiscal year 2017) and prior to the Cumulative Amount Reference Time, minus (y) the portion of such Excess Cash Flow that has been (or is required to be) applied after the Closing Date and prior to the Cumulative Amount Reference Time to the prepayment of Term Loans in accordance with Section 2.05(g) or any other pari passu Indebtedness (including the Priority Lien Notes) in accordance with the terms thereof (but excluding for purposes of this clause (y) any portion of such Excess Cash Flow with respect to which such prepayment has been waived by the Lender or other holder of such Indebtedness entitled thereto); plus
(ii)     the amount of any Declined Proceeds; minus
(iii)     the aggregate amount of any Restricted Payment made pursuant to Section 7.06(e)(ii) and any Investments made pursuant to Section 7.02(m)(ii) during the period commencing on the Closing Date and ending on or prior to the Cumulative Amount Reference Time (and, for purposes of this clause (iiiiv), without taking account of the intended usage of the Cumulative Amount at such Cumulative Amount Reference Time).
Cumulative Amount Reference Time” has the meaning specified in the definition of “Cumulative Amount”.
Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
Debtors” has the meaning specified in the preliminary statements to this Agreement.
Declined Proceeds” has the meaning specified in Section 2.05(n).
Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
Default Rate” means (a) when used with respect to outstanding principal of and interest on the Loans, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate with respect to the applicable Loans that are Base Rate Loans plus (iii) 2% per annum; provided, however, that with respect to a Eurocurrency Rate Loan, the Default Rate shall be an interest rate equal to (i) the Eurocurrency Rate otherwise applicable to such Eurocurrency Rate Loan plus (ii) the Applicable Rate with respect to the applicable Loans plus (iii) 2% per annum; (b) when used with respect to all other amounts (other than Letter of Credit Fees), a rate equal to (i) the Base Rate plus (ii) the Applicable Rate with respect to Term Loans that are Base Rate Loans plus (iii) 2% per annum;

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and (c) when used with respect to Letter of Credit Fees, a rate equal to (i) the Base Rate plus (ii) the Applicable Rate with respect to Incremental Revolving Loans that are Base Rate Loans plus (iii) 2% per annum.
Defaulting Lender” means any Lender that (a) has failed to fund (i) any portion of the Loans, unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s reasonable 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) participations in L/C Obligations required to be funded by it hereunder within three Business Days of the date required to be funded by it hereunder, (b) has otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within three Business Days of the date when due, unless the subject of a good faith dispute, (c) has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding provided that 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 permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender or (d) has become the subject of a Bail-In Action. A Lender that has become a Defaulting Lender because of an event referenced in this definition may cure such status and shall no longer constitute a Defaulting Lender as provided in the last paragraph of Section 2.18.
Designated Letters of Credit” means letters of credit issued with respect to Mine reclamation, workers’ compensation and other employee benefit liabilities.
Designated Non-Cash Consideration” means the fair market value (as reasonably determined by the Borrower in good faith) of non-cash consideration received by the Borrower or any of its Restricted Subsidiaries in connection with a Disposition that is so designated as “Designated Non-Cash Consideration” minus the amount of cash or Cash Equivalents received in connection with a subsequent sale of such Designated Non-Cash Consideration.
Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) in one transaction or in a series of transactions, and whether effected pursuant to a division or otherwise, of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
Disqualified Equity Interest” means Equity Interests that by their terms (or by the terms of any security into which such Equity Interests are convertible, or for which such Equity Interests are exchangeable, in each case at the option of the holder thereof) or upon the happening of any event (i) mature or are mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or are required to be redeemed or redeemable at the option of the holder for consideration other than Qualified Equity Interests, or (ii) are convertible at the option of the holder into Disqualified Equity Interests or exchangeable for Indebtedness, in each case of clauses (i) and (ii) prior to the date that is 91 days after the final Maturity Date hereunder, except, in the case of clauses (i) and

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(ii), if as a result of a change of control or asset sale, so long as any rights of the holders thereof upon the occurrence of such a change of control or asset sale event are subject to the prior payment in full of all Obligations.
Disqualified Institution” means (i) any financial institutions and entities identified by the Borrower to the Arrangers by name in writing on or prior to January 11, 2017 or as the Borrower and the Arrangers (or, after the Closing Date, the Borrower and the Administrative Agent) shall mutually agree after such date, (ii) any competitors of the Borrower or any of its Subsidiaries identified by the Borrower to the Administrative Agent and Lenders by name in writing and upon three (3) Business Days’ notice from time to time and (iii) affiliates of the foregoing that are readily identifiable solely on the basis of similarity of their names; provided that (x) “Disqualified Institutions” shall not include any bona fide diversified debt fund or a diversified investment vehicle that is engaged in the making, purchasing, holding or otherwise investing in, acquiring or trading commercial loans, bonds and similar extensions of credit in the ordinary course; (y) neither Administrative Agent nor Arranger shall have any responsibility for monitoring compliance with any provisions of this Agreement with respect to Disqualified Institutions and (z) updates to the Disqualified Lender schedule shall not retroactively invalidate or otherwise affect any (A) assignments or participations made to, (B) any trades entered into with or (C) information provided to any Person, in each case, before it was designated as a Disqualified Institution. It is acknowledged and agreed by the Borrower that the identity of Disqualified Institutions will be made available to the Lenders.
As of the Seventh Amendment Effective Date, no Persons have been identified to the Administrative Agent as Disqualified Institutions pursuant to clause (i) above.
Dollar Equivalent” means, at any date, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency, the equivalent amount thereof in Dollars as determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with such Alternative Currency.
Documentation Agents” has the meaning specified in the preamble heretoAgent” means, as of the Seventh Amendment Effective Date, Commerce Bank.
Dodd-Frank Act” means the Dodd–Frank Wall Street Reform and Consumer Protection Act (Pub.L. 111-203, H.R. 4173) signed into law on July 21, 2010, as amended from time to time.
Dollar” and “$” mean lawful money of the United States.
Domestic Subsidiary” means any Subsidiary that is organized under the laws of the United States or any State thereof or the District of Columbia; provided, that in no event shall any such Subsidiary that is a Subsidiary of a Foreign Subsidiary be considered a “Domestic Subsidiary” for purposes of the Loan Documents.
EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described

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in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
Eligible Assignee” means
(a)    with respect to the Term Loan Facility, (i) a Lender, (ii) an Affiliate of a Lender, (iii) an Approved Fund and (iv) any other Person (other than a natural person) approved by (A) the Administrative Agent and (B) unless an Event of Default under Sections 8.01(a), (f) and (g) has occurred and is continuing, the Borrower (each such approval not to be unreasonably withheld or delayed), provided that the Borrower shall be deemed to have approved such Person unless it shall have objected thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof; and
(b)    with respect to any Incrementalthe Revolving Facility, (i) an Incrementala Revolving Lender, (ii) an Affiliate of an Incrementala Revolving Lender and (iii) any other Person (other than a natural person) approved by (A) the Administrative Agent and each L/C Issuer and (B) unless an Event of Default under Sections 8.01(a), (f) and (g) has occurred and is continuing, the Borrower (each such approval not to be unreasonably withheld or delayed), provided that the Borrower shall be deemed to have approved such Person unless it shall have objected thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof;
provided, however, in each case, unless an Event of Default has occurred and is continuing, an Eligible Assignee shall include only a Lender, an Affiliate of a Lender or another Person, which, through its Lending Offices, is capable of lending to the Borrower, without the imposition of any additional Indemnified Taxes and assignment to such Person would not, at the time of such assignment, result in the Borrower becoming liable to pay any additional amount to such Person or any Governmental Authority pursuant to Section 3.01 or Section 3.04; provided further that no Defaulting Lender or Disqualified Institution shall be an Eligible Assignee.
Eligible L/C Issuer” means an Incrementala Revolving Lender, an Affiliate of an Incrementala Revolving Lender or any other financial institution, in each case, that has a long term unsecured debt investment grade rating, agrees to act as an L/C Issuer hereunder and, if replacing an existing L/C Issuer, agrees to replace the existing L/C Issuer in accordance with the terms of this Agreement, including having an L/C Issuance Limit at least equal to the L/C Issuance Limit of the replaced L/C Issuer unless otherwise agreed by the Borrower.
EMU Legislation” means the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.

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Environmental Laws” means any and all applicable current and future federal, state, local and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or other governmental restrictions or common law causes of action relating to (a) protection of the environment or to emissions, discharges, releases or threatened releases of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or wastes into the environment including ambient air, surface, water, ground water, or land, (b) human health as affected by Hazardous Materials, and (c) mining operations and activities to the extent relating to environmental protection or reclamation, including the Surface Mining Control and Reclamation Act, provided that “Environmental Laws” do not include any laws relating to worker or retiree benefits, including benefits arising out of occupational diseases.
Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
Environmental Permits” means any and all permits, licenses, registrations, notifications, exemptions and any other authorization required under any applicable Environmental Law.
Equity Interests” means, with respect to any Person, all of the shares of Capital Stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of Capital Stock of (or other ownership or profit interests in) such Person, and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination (but excluding any debt security that is convertible into, or exchangeable for, Equity Interests).
ERISA” means the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time, the regulations promulgated thereunder and any successor statute.
ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the failure to meet the minimum funding standards of Sections 412 or 430 of the Code or Sections 302 or 303 of ERISA with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Code or Section 302(c) of ERISA) or the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (c) a determination that any Pension Plan is, or is expected to be, in “at risk” status (as defined in Section 430 of the Code or Section 303 of

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ERISA); (d) a determination that any Multiemployer Plan is, or is expected to be, in “critical” or “endangered” status under Section 432 of the Code or Section 305 of ERISA; (e) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (f) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganizationinsolvent; (g) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (h) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (i) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate; (j) receipt from the IRS of notice of the failure of any Pension Plan (or any other Plan intended to be qualified under Section 401(a) of the Code) to qualify under Section 401(a) of the Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Code; (k) the imposition of a Lien pursuant to Section 430(k) of the Code or Section 303(k) of ERISA or a violation of Section 436 of the Code with respect to any Pension Plan; or (l) the occurrence of any Foreign Plan Event.
EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
Euro” and “EUR” means the lawful currency of the Participating Member States introduced in accordance with the EMU Legislation.
Eurocurrency Rate” means, for any Interest Rate Determination Date with respect to an Interest Period for a Eurocurrency Rate Loan, the rate per annum obtained by dividing (i) (a) the rate per annum equal to the rate determined by Administrative Agent to be the London interbank offered rate administered by the ICE Benchmark Administration (or any other person which takes over the administration of that rate) for deposits (for delivery on the first day of such period) with a term equivalent to such period in Dollars displayed on the ICE LIBOR USD page of the Reuters Screen (or any replacement Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Reuters, determined as ofLIBO Screen Rate at approximately 11:00 a.m. (, London, England time) on such Interest Rate Determination Date, or (b) in the event the rate referenced in the preceding clause (a) is not available, the rate per annum equal to the offered quotation rate to first class banks in the London interbank market by the Administrative Agent for deposits (for delivery on the first day of the relevant period) in Dollars of amounts in same day funds comparable to the principal amount of the applicable Loan of Administrative Agent, in its capacity as a Lender, for which the Eurocurrency Rate is then being determined with maturities comparable to such period as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date, by (ii) an amount equal to (a) one minus (b) the Applicable Reserve Requirement, two Business Days prior to the commencement of such Interest Period; provided that if the LIBO Screen Rate shall not be available at such time for such Interest Period (an “Impacted Interest Period”)

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then the Eurocurrency Rate shall be the Interpolated Rate. If, at any time, the Eurocurrency Rate would be less than zero, the Eurocurrency Rate shall be deemed to be zero at such time.
Eurocurrency Rate Loan” means a Term Loan or an Incrementala Revolving Loan that bears interest at a rate based on the Eurocurrency Rate.
Event of Default” has the meaning specified in Section 8.01.
Excess Cash Flow” means, for any period, an amount (if positive) equal to, without duplication, the amount for such period, as reflected in the Borrower’s and its Restricted Subsidiaries’ consolidated cash flow statement for the relevant period, of net cash provided by/used in operating activities (as determined in accordance with GAAP);
minus
the sum, without duplication, of the amounts for such period paid from Internally Generated Cash (except to the extent made using the Cumulative Amount) of:
(1)
scheduled repayments of Indebtedness for borrowed money (excluding repayments of revolving loans except to the extent the applicable revolving commitments are permanently reduced in connection with such repayments) and scheduled repayments of Capital Lease Obligations (excluding any interest expense portion thereof), provided that, for the avoidance of doubt, any borrowing under the ABL Facility or repayment thereof (without a corresponding reduction in the commitments thereunder) shall not increase or decrease Excess Cash Flow,
(2)
Consolidated Capital Expenditures,
(3)
Permitted Acquisitions and other Investments permitted pursuant to Section 7.02 (other than clauses (a) and (k) of Section 7.02),
(4)
pre-funding of royalty payments in the ordinary course of business,
(5)
distributions to non-controlling interests,
(6)
federal coal lease expenditures, and
(7)
net cash generated from proceeds of any Permitted Securitization Programs or loan proceeds from the ABL Facility (excluding interest costs).,
provided that, for the avoidance of doubt, any borrowing under a Permitted Securitization Program or repayment thereof (without a corresponding reduction in the commitments thereunder) shall not increase or decrease Excess Cash Flow.
As used in clause (1) above, “scheduled repayments of Indebtedness” does not include (x) repurchases of Term Loans pursuant to Sections 2.19 or 2.20 and (y) repayments of Loans made with the cash proceeds of any Permitted Refinancing Indebtedness.


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Excess Proceeds” has the meaning specified in Section 2.05(e).
Excluded Assets” means
(a) motor vehicles and other assets subject to certificates of title where the net book value of any such motor vehicle or other such asset individually is less than $1,000,000,
(b) commercial tort claims where the amount of the net proceeds claimed is less than $10,000,000,
(c) (i) any lease, license or other written agreement or written obligation (each, a “Contract”) and any leased or licensed asset under a Contract or asset financed pursuant to a purchase money financing Contract or Capital Lease Obligation, in each case that is the direct subject of such Contract (so long as such Contract is not entered into for purposes of circumventing or avoiding the collateral requirements of this Agreement), in each case only for so long as the granting of a security interest therein (x) would be prohibited by, cause a default under or result in a breach of such Contract (unless the Borrower or any Controlled Subsidiary may unilaterally waive it) or would give another Person (other than the Borrower or any Controlled Subsidiary) a right to terminate or accelerate the obligations under such Contract or to obtain a Lien to secure obligations owing to such Person (other than the Borrower or any Controlled Subsidiary) under such Contract (in each case, except to the extent any such prohibition is unenforceable after giving effect to applicable anti-assignment provisions of the UCC) or (y) would require obtaining the consent of any Person (other than the Borrower or any Controlled Subsidiary) or applicable Governmental Authority, except to the extent that such consent has already been obtained or (ii) any asset the granting of a security interest therein in favor of the Secured Parties would be prohibited by any applicable Requirement of Law (other than any Organizational Document) (except to the extent such prohibition is unenforceable after giving effect to applicable anti-assignment provisions of the UCC, other than proceeds thereof, the assignment of which is expressly deemed effective under the UCC notwithstanding such prohibitions),
(d) those assets with respect to which, in the reasonable judgment of the Administrative Agent and the Borrower, the costs of obtaining or perfecting such a security interest are excessive in relation to the benefits to be obtained by the Secured Parties therefrom or would result in materially adverse tax consequences to the Borrower or its Subsidiaries as reasonably determined by the Borrower in consultation with the Administrative Agent,
(e) any Letter of Credit Rights (as defined in the UCC) (other than to the extent a Lien thereon can be perfected by filing a customary financing statement),
(f) any right, title or interest in Receivables Assets sold, pledged or financed pursuant to a Permitted Securitization Program, and all of a Subsidiary’s and any Loan Party’s rights, interests and claims under a Permitted Securitization Program,
(g) any real property and leasehold rights and interests in real property other than Material Real Property,
(h) any “intent-to-use” application for registration of a Trademark (as defined in the Security Agreement) filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. § 1051, prior to

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the filing and acceptance of a “Statement of Use” pursuant to Section 1(d) of the Lanham Act or an “Amendment to Allege Use” pursuant to Section 1(c) of the Lanham Act with respect thereto, and
(i) (i) any Equity Interests set forth on Schedule 1.01(c), (ii) any Equity Interest that is Voting Stock of a first-tier Foreign Subsidiary or FSHCO in excess of 65% of the Voting Stock of such Subsidiary, (iii) any Equity Interests in Gibraltar Holdings, Peabody International Investments, Inc., Peabody International Holdings, LLC and each other Subsidiary, whether now owned or hereafter acquired, substantially all of the assets of which consist of Equity Interests in Gibraltar Holdings and any successor to any of the foregoing, (iv) any Equity Interests of captive insurance subsidiaries and not-for-profit subsidiaries, (v) any Equity Interests in, or assets of, any Special Purpose Receivables Subsidiary (to the extent a pledge of the Equity Interests in such Special Purpose Receivables Subsidiary is prohibited under any Permitted Securitization Program entered into by such Special Purpose Receivables Subsidiary), (vi) margin stock and (vii) any Equity Interests in any Subsidiary that is not wholly-owned by the Borrower or any Restricted Subsidiary or in a Joint Venture, if the granting of a security interest therein (A) would be prohibited by, cause a default under or result in a breach of, or would give another Person (other than the Borrower or any Controlled Subsidiary) a right to terminate, under any Organizational Document, shareholders, joint venture or similar agreement applicable to such Subsidiary or Joint Venture or (B) would require obtaining the consent of any Person (other than the Borrower or any Controlled Subsidiary); provided that (i) 65% of the voting Equity Interests and 100% of the non-voting Equity Interests in Peabody Investments (Gibraltar) Limited (or any successor thereto) and (ii) the Equity Interests in the PRB-CO Joint Venture held (directly or indirectly) by the Borrower, in each case, shall not constitute Excluded Assets;
provided that the Collateral shall include the replacements, substitutions and proceeds of any of the foregoing unless such replacements, substitutions or proceeds also constitute Excluded Assets.
Excluded Flood Zone Property” means any “building”, “structure” or “mobile home” situated on any real property (each as defined in Regulation H as promulgated under the Flood Laws) located in a special flood hazard area and such real property under which such building, structure or mobile home stands.
Excluded Hedging Obligation” means, with respect to any Guarantor, (a) as it relates to all or a portion of the Guarantee of such Guarantor of Hedging Obligations, any Hedging Obligation if, and to the extent that, such Hedging Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Guarantor becomes effective with respect to such Hedging Obligation or (b) as it relates to all or a portion of the grant by such Guarantor of a security interest to secure any Hedging Obligation (or secure any Guarantee in respect thereof), any Hedging Obligation if, and to the extent that, the grant by such Guarantor of a security interest to secure such Hedging Obligation (or secure any Guarantee in respect thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for

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any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the grant of such security interest becomes effective with respect to such Hedging Obligation. If a Hedging Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Hedging Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal. As used in this definition, “Hedging Obligation” shall mean, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) branch profits taxes or taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), in each case imposed (i) as a result of the Administrative Agent, such Lender or such L/C Issuer (or such other recipient) being organized under the laws of, or having its principal office in 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) other than in the case of an assignee pursuant to a request by the Borrower under Section 10.133.06, any United States federal withholding tax that is imposed on amounts payable to a Lender under the law applicable at the time such Lender acquires an interest in a Loan or Commitment (or designates a new Lending Office), except to the extent that such Lender (or its assignor, if any) was entitled, at the time of the designation of a new Lending Office (or assignment) to receive additional amounts from the applicable Loan Party with respect to such withholding tax pursuant to Section 3.01(a), (c) Taxes attributable to such Lender’s failure or inability to comply with Section 3.01(e) and (d) any taxes imposed under FATCA.
Existing Credit Agreement” means that certain Credit Agreement, dated September 24, 2013, by and among the Borrower, Citibank, N.A., as administrative agent, and the lenders party thereto (as amended by that certain Omnibus Amendment, dated as of February 5, 2015 and as otherwise amended, restated, supplemented or otherwise modified).
“Existing Letters of Credit” has the meaning set forth in the recitals hereto.
Existing Securitization Facility” means the accounts receivable securitization financing of P&L Receivables Company LLC existing as of the ClosingSeventh Amendment Effective Date, and any replacements, refinancings, amendments, restatements, renewals or extensions thereof, subject in each case to the restrictions set forth in the definition of Permitted Securitization Programs.
Exit” has the meaning specified in the preliminary statements to this Agreement.
Facility” means the 2017 Incremental Revolving Facility, the Term Loan Facility, any other Incremental Facility and/or any Refinancing Facility, as the context may require.
FATCA” means Sections 1471 through 1474 of the 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), any current or future regulations or official interpretations thereof, any

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agreements entered into pursuant to Section 1471(b)(1) of the Code and any laws implementing anfiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement with respect to the foregoing, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federalcalculated by the NYFRB based on such day’s federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as soby depositary institutions, as determined in such manner as the NYFRB shall set forth on its public website from time to time, and published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, by the NYFRB as the effective federal funds rate; provided that if the Federal Funds Effective Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to the Administrative Agent on such day on such transactions as determined by the Administrative Agent.as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
“Federal Reserve Board” means the Board of Governors of the Federal Reserve System of the United States of America.
Fee Letters” means, collectively, (a) that certain Fee Letter, dated January 11, 2017, among the Borrower, Goldman Sachs Bank USA, JPMorgan Chase Bank, N.A., Credit Suisse Securities (USA) LLC, Credit Suisse AG, Cayman Islands Branch, Macquarie Capital (USA) Inc. and Macquarie Capital Funding LLC, (b) that certain Structuring Fee Letter, dated January 11, 2017, among the Borrower and Goldman Sachs Bank USA and (c) that certain Incrementalthe Fee Letters dated September 4, 2019, between the Borrower and each Arranger of the 2019 Refinancing Revolving Facility Fee Letter, dated as of the Second Amendment Effective Date, among the Borrower and Goldman Sachs Bank USA, respectively.
Fifth Amendment” means that certain Amendment No. 5 to Credit Agreement, dated as of June 27, 2018, by and among the Borrower, the other Reaffirming Parties (as defined therein), the Lenders party thereto and the Administrative AgentGoldman Sachs Bank USA as the administrative agent.
Fifth Amendment Effective Date” means June 27, 2018.
Finance Parties” has the meaning specified in Section 4.01(l).
Financing Lease” means any lease of property, real or personal, the obligations of the lessee in respect of which are required in accordance with GAAP to be capitalized on a balance sheet of the lessee; provided that, any operating lease that is required to be treated as a capital lease in accordance with GAAP as a result of any Accounting Change shall not be deemed a Financing Lease for purposes of this Agreement.accounted for as a finance lease.

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Financing Transactions” means, collectively, (a) the Refinancing, (b) the incurrence of the Loans under the Loan Documents, (c) the issuance of the Priority Lien Notes (and the assumption by the Borrower of the obligations thereunder), (d) the incurrence of any Permitted Securitization Program and (e) the payment of the fees and expenses incurred in connection with any of the foregoing clauses (a)-(d) hereof.
First Amendment” means that certain Amendment No. 1 to Credit Agreement, dated as of September 18, 2017, by and among the Borrower, the other Reaffirming Parties (as defined therein), the 2017 Refinancing Term Lenders (as defined therein) and the Administrative AgentGoldman Sachs Bank USA as the administrative agent.
First Amendment Effective Date” means September 18, 2017.
First Lien Leverage Ratio” means, as of any date of determination, the ratio of (i) Consolidated Net Total Debt (other than any portion of Consolidated Net Total Debt that is unsecured or is secured solely by a Lien that is junior to the Liens securing the Obligations) as of the date of the financial statements most recently delivered by the Borrower pursuant to Section 6.01(a) or (b), as applicable, to (ii) Consolidated EBITDA for the period of the four consecutive fiscal quarters ending as of the date of such financial statements; provided that, solely for purposes of calculating the First Lien Leverage Ratio in connection with Section 7.11 hereof, the aggregate amount of Unrestricted Cash deducted pursuant to clause (b) of the definition of Consolidated Net Total Debt shall not exceed $800 million800,000,000.
First Priority” means, with respect to any Lien purported to be created in any Collateral pursuant to any Security Document, that such Lien ranks first in priority to all other Liens, other than Liens permitted under clauses (b), (c), (d), (e), (f)(i), (f)(ii), (g), (p), (s), (t) (solely to the extent such Lien is pari passu with the Liens securing the Obligations and is subject to the Collateral Trust Agreement), and (w) (solely to the extent such Lien is pari passu with the Liens securing the Obligations and is subject to the Collateral Trust Agreement) and (z) (solely with respect to any ABL Priority Collateral) of Section 7.01.
Fixed Charge Coverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated EBITDA for the period of the four consecutive fiscal quarters ending as of the date of the financial statements most recently delivered by the Borrower pursuant to Section 6.01(a) or (b), as applicable, to (b) the aggregate Fixed Charges of the Borrower during such period.
Fixed Charges” means, with respect to any specified Person for any period, the sum of: (a) Interest Expense for such period; and (b) the product of (i) cash and non-cash dividends paid, declared, accrued or accumulated on any Disqualified Equity Interests of the Borrower or any Preferred Stock of a Restricted Subsidiary, except for dividends payable in the Borrower’s Qualified Equity Interests or paid to the Borrower or to a Restricted Subsidiary and (ii) a fraction, the numerator of which is one and the denominator of which is one minus the sum of the currently effective combined Federal, state, local and foreign tax rate applicable to the Borrower and its Restricted Subsidiaries.
Flood Laws” means, collectively, (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973

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as now or hereafter in effect or any successor statute thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto, (iv) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (v) Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.
Foreign Lender” means any Lender that is not a “United States Person” as defined in Section 7701(a)(30) of the Code.
Foreign Plan” means any employee benefit plan, program, policy, arrangement or agreement maintained or contributed to by any Loan Party or any of their respective Subsidiaries with respect to employees employed outside the United States and paid through a non-United States payroll.
Foreign Plan Event” means, with respect to any Foreign Plan, (a) the existence of unfunded liabilities in excess of the amount permitted under any applicable law, or in excess of the amount that would be permitted absent a waiver from a Governmental Authority, (b) the failure to make the required contributions or payments, under any applicable law, within the time permitted by Law for such contributions or payments, (c) the receipt of a notice from a Governmental Authority relating to the intention to terminate any such Foreign Plan or to appoint a trustee or similar official to administer any such Foreign Plan, or alleging the insolvency of any such Foreign Plan, (d) the incurrence of any liability by any Loan Party under applicable law on account of the complete or partial termination of such Foreign Plan or the complete or partial withdrawal of any participating employer therein, in each case, which could reasonably be expected to have a Material Adverse Effect, or (e) the occurrence of any transaction with respect to a Foreign Plan that is prohibited under any applicable law and that could reasonably be expected to result in the incurrence of any liability by any Loan Party, or the imposition on any Loan Party of any fine, excise tax or penalty with respect to a Foreign Plan resulting from any noncompliance with any applicable law, in each case which could reasonably be expected to have a Material Adverse Effect.
Foreign Subsidiary” means a Subsidiary that is organized under the laws of a jurisdiction other than the United States or any State thereof or the District of Columbia and any Subsidiary thereof.
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
Fourth Amendment” means that certain Amendment No. 4 to Credit Agreement, dated as of April 11, 2018, by and among the Borrower, the other Reaffirming Parties (as defined therein), the 2018 Refinancing Term Lenders (as defined therein) and the Administrative AgentGoldman Sachs Bank USA as the administrative agent.
Fourth Amendment Effective Date” means April 11, 2018.
FRB” means the Board of Governors of the Federal Reserve System of the United States.
Fronting Fee” has the meaning specified in Section 2.03(j).

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FSHCO” means any Domestic Subsidiary formed or acquired on or after the ClosingSeventh Amendment Effective Date substantially all of the assets of which consist of the Equity Interests of one or more Foreign Subsidiaries.
Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.
GAAP” means generally accepted accounting principles, which are applicable to the circumstances as of the date of determination. The sources of accounting principles and the framework for selecting the principles used in the preparation of financial statements of nongovernmental entities that are presented in conformity with GAAP in the United States, are set forth in the Financial Accounting Standards Board’s Accounting Standards Codification.
Gibraltar Holdings” means Peabody Global Holdings (Gibraltar) Limited, LLC, or any successor entity (including via redomiciliation) that directly holds the Capital Stock of Peabody Investments (Gibraltar) Limited.
Gibraltar Pledge Agreement” means the Share Charge, dated as of the Closing Date, between Gibraltar Holdings, Peabody Investments (Gibraltar) Limited and the Collateral Trustee, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
Governmental Authority” means the government of the United States or any other nation, or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
Guarantee” means, as to any Person (the “guaranteeing person”), any obligation of (a) the guaranteeing person or (b) another Person (including, without limitation, any bank under any letter of credit) to the extent the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation in order to induce the creation of such obligation, in either case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other obligations (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, reimbursement obligations under letters of credit and any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (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, 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 owner of any such primary obligation against loss in respect thereof; provided, however, that the term Guarantee obligation shall not include (i) indemnification or reimbursement obligations under or in respect of Surety Bonds or Designated Letters of Credit, (ii) ordinary course performance guarantees by

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any Loan Party of the obligations (other than for the payment of borrowed money) of any other Loan Party and (iii) endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith. The term “Guarantee” as a verb has a corresponding meaning.
Guarantors” means any Restricted Subsidiary that is a Domestic Subsidiary (other than those entities to be merged, dissolved or consolidated in connection with the Permitted Restructuring Transactions within thirty (30) days following the Closing Date) and each other Subsidiary, whether now owned or hereafter formed or acquired, that directly holds Equity Interests in Gibraltar Holdings at any time; provided, that such term shall not include (a) any Subsidiary not wholly-owned, directly or indirectly, by the Borrower to the extent (but only so long as) it is prohibited by the terms of any Contractual Obligation (including pursuant to any Organizational Documents of such Subsidiary) from guaranteeing the Secured Obligations or any other obligations or liabilities guaranteed pursuant to the terms of the Guaranty (it being understood that, for purposes of this definition, the terms of any Contractual Obligation shall be deemed to prohibit such Guarantee if it would constitute a breach or default under or result in the termination of or require the consent of any Person (other than the Borrower or any Controlled Subsidiary, or the Administrative Agent or the Lenders in their respective capacities as such) under the security, agreement, instrument or other undertaking giving rise to such Contractual Obligation); provided further, that such Contractual Obligation is not and was not created in contemplation of this definition, and provided further, that this clause (a) shall not be deemed to exclude (or release) any Domestic Subsidiary which is a Guarantor in the case of a disposition of a portion of the Equity Interests in such Guarantor as a result of (i) the disposition or issuance of Equity Interests of such Domestic Subsidiary in either case to an Affiliate that is not the Borrower or a Restricted Subsidiary, (ii) any transaction entered into primarily in contemplation of such Domestic Subsidiary’s ceasing to constitute a Loan Party or (iii) the disposition or issuance of Equity Interests of such Domestic Subsidiary for materially less than the fair market value of such shares as reasonably determined by the Borrower), (b) any FSHCO, (c) any Domestic Subsidiary that is a Subsidiary of any Foreign Subsidiary; provided, however, that clauses (b) and (c) shall not apply to any Subsidiary, whether now owned or hereafter formed or acquired, that directly holds Equity Interests in Gibraltar Holdings, or (d) any Special Purpose Receivables Subsidiaries and captive insurance entities. The Guarantors as of the ClosingSeventh Amendment Effective Date are the Subsidiaries of the Borrower listed on Schedule 1.01(a). For the avoidance of doubt and notwithstanding anything herein or in any other Loan Document to the contrary, (x) no Foreign Subsidiary now owned or hereafter formed or acquired shall be a Guarantor (other than a Foreign Subsidiary hereafter formed or acquired that directly holds Equity Interests in Gibraltar Holdings) and (y) Gibraltar Holdings shall not be a Guarantor.

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Guaranty” means that certain Guarantee of the Secured Obligations dated as of the Closing Date and made by the Guarantors in favor of the Administrative Agent and the Secured Parties, substantially in the form of Exhibit F, including any supplement, accession, assumption or joinder thereto, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
Hazardous Materials” means (i) any explosive or radioactive substances or wastes and (ii) any hazardous or toxic substances, materials or wastes, defined or regulated as such in or under, or that could reasonably be expected to give rise to liability under, any applicable Environmental Law, including, without limitation, asbestos, polychlorinated biphenyls, urea-formaldehyde insulation, gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products or any coal ash, coal combustion by-products or waste, boiler slag, scrubber residue or flue desulphurization residue.
Hedge Bank” has the meaning specified in the definition of “Secured Hedging Agreement”.
Hedging Agreement” means (i) any interest rate swap agreement, interest rate cap agreement, interest rate future agreement, interest rate collar agreement, interest rate hedge agreement or other similar agreement or arrangement designed to protect against or mitigate interest rate risk, (ii) any foreign exchange forward contract, currency swap agreement, futures contract, option contract, synthetic cap or other agreement or arrangement designed to protect against or mitigate foreign exchange risk or (iii) any commodity or raw material, including coal, futures contract, commodity hedge agreement, option agreement, any actual or synthetic forward sale contract or other similar device or instrument or any other agreement designed to protect against or mitigate raw material price risk (which shall for the avoidance of doubt include any forward purchase and sale of coal for which full or partial payment is required or received).
Hedging Obligations” means all debts, liabilities and obligations of the Borrower or any Restricted Subsidiary in respect of any Hedging Agreement.
Hedging Termination Value” means, in respect of any one or more Hedging Agreement, after taking into account the effect of any valid netting agreement relating to such Hedging Agreements, (a) for any date on or after the date such Hedging Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Hedging Agreements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedging Agreements (which may include a Lender, the Administrative Agent or any Affiliate of a Lender or the Administrative Agent) (it being understood that any such termination values and marked-to-market values shall take into account any assets posted as collateral or security for the benefit of a party to the Hedging Agreement).
Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under the laws applicable to any Lender which are presently in effect or, to the extent allowed by law, under such applicable laws

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which may hereafter be in effect and which allow a higher maximum nonusurious interest rate than applicable laws now allow.
Honor Date” shall have the meaning specified in Section 2.03(c)(i).
“Impacted Interest Period” has the meaning specified in the definition of “Eurocurrency Rate”
Incremental Amendment” has the meaning specified in Section 2.15(g).
Incremental Debt” means, at any time, all Incremental NotesEquivalent Debt and Incremental Facilities outstanding.
Incremental Debt Cap” means, as determined with respect to any Incremental Debt to be incurred, an amount equal to the sum of (a) $300,000,000 and (b) (i) if such Incremental Debt is (or is intended to be) secured by the Collateral on a pari passu basis, an additional amount if, after giving effect to the incurrence of such Incremental Debt and any acquisition consummated in connection therewith, the First Lien Leverage Ratio (calculated assuming all Commitments under the Incremental Revolving FacilitiesFacility are fully drawn) is equal to or less than 1.75 to 1.00 on a Pro Forma Basis and (ii) if such Incremental Debt is secured by the Collateral on a junior-lien basis or unsecured, an additional amount if, after giving effect to the incurrence of such Incremental Debt and any acquisition consummated in connection therewith, the Total Leverage Ratio (calculated assuming all Commitments under the Incremental Revolving FacilitiesFacility are fully drawn) is equal to or less than 2.50:1.00 on a Pro Forma Basis.
Incremental Facility” has the meaning specified in Section 2.15(a).
Incremental Facility Effective Date” has the meaning specified in Section 2.15(c).
Incremental Facility Request” has the meaning specified in Section 2.15(a).
Incremental Lender” means any Incremental Term Lender or any Incremental Revolving Lender.
Incremental Loan” means, with respect to any Incremental Facility, an advance made by any Incremental Lender under such Incremental Facility.
Incremental Notes” has the meaning specified in Section 7.03(m).
Incremental Revolving Borrowing” means a borrowing consisting of simultaneous Incremental Revolving Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Incremental Revolving Lenders pursuant to Section 2.01(b).
Incremental Revolving Commitment” means, as to each Incremental Revolving Lender, its obligation to (a) make Incremental Revolving Loans to the Borrower pursuant to Section 2.01(b) and (b) purchase participations in L/C Obligations, in an aggregate principal amount at any one time outstanding under such clauses (a) and (b) not to exceed the amount set

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forth (x) in the case of the 2017 Incremental Revolving Facility, opposite such Lender’s name on Schedule 1 to the Second Amendment under the caption “2017 Incremental Revolving Commitment” or on Schedule 1 to the Third Amendment under the caption “2017 Incremental Revolving Commitment”, as applicable, (y) in the case of any other Incremental Revolving Facility, in the applicable Incremental Amendment or (z) if applicable, in any case, in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate amount of the Incremental Revolving Commitments as of the Third Amendment Effective Date is $350,000,000.
Incremental Revolving Facility” has the meaning specified in Section 2.15(a).
Incremental Revolving Facility Maturity Date” means November 17, 2020; provided, however, that, if such date is not a Business Day, the Incremental Revolving Facility Maturity Date shall be the preceding Business Day.
Incremental Revolving Lender” means any Person who provides an Incremental Revolving Facility.
Incremental Revolving Loan” means an advance made by an Incremental Revolving Lender under an Incremental Revolving Facility.
Incremental Term Facility” has the meaning specified in Section 2.15(a).
Incremental Term Lender” means any Person who provides an Incremental Term Facility.
Incremental Term Loan” means an advance made by an Incremental Term Lender under an Incremental Term Facility.
Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a)    all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments (other than any obligations in respect of performance bonds bid bonds, appeal bonds, surety bonds, reclamation bonds and completion guarantees, bank guarantees and similar obligations under any Mining Law or Environmental Law or with respect to worker’s compensation benefits);
(b)    all obligations of such Person arising under letters of credit, bankers’ acceptances or similar instruments issued for the account of such Person (solely to the extent such letters of credit, bankers’ acceptances or other similar instruments have been drawn and remain unreimbursed);
(c)    net obligations of such Person under any Hedging Agreement;
(d)    all obligations of such Person to pay the deferred purchase price of property or services (other than (i) trade accounts payable and accrued expenses incurred in the ordinary course

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of business, (ii) obligations under federal coal leases, (iii) obligations under coal leases which may be terminated at the discretion of the lessee and (iv) obligations for take-or-pay arrangements);
(e)    indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
(f)    Capital Lease Obligations (other than obligations in connection with the IRBs); and
(g)    all Guarantees of such Person in respect of any of the foregoing Indebtedness of any other Person (but excluding any performance and completion Guarantees of such Person);
provided that in no event shall Indebtedness include (i) asset retirement obligations or (ii) obligations (other than obligations with respect to Indebtedness for borrowed money or other Indebtedness evidenced by loan agreements, bonds, notes or debentures or similar instruments or letters of credit (solely to the extent such letters of credit or other similar instruments have been drawn and remain unreimbursed) (or, without duplication, reimbursement agreements in respect thereof)) related to surface rights under an agreement for the acquisition of surface rights for the production of coal reserves in the ordinary course of business in a manner consistent with historical practice of the Borrower and its Subsidiaries.
The amount of any net obligation under any Hedging Agreement on any date shall be deemed to be the Hedging Termination Value thereof as of such date. The amount of any Indebtedness issued with original issue discount shall be deemed to be the face amount of such Indebtedness less the remaining unamortized portion of the original issue discount of such Indebtedness. The amount of any Capital Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date. The amount of any indebtedness of a Joint Venture secured by a Lien on property owned or being purchased by the Borrower or its Restricted Subsidiaries as of any date shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the indebtedness that is secured by such Lien and (b) the maximum amount for which the Borrower or its Restricted Subsidiaries may be liable (which may be determined with reference to the fair market value of the property securing such indebtedness as reasonably determined by the Borrower in good faith) pursuant to the terms of such indebtedness. Except as set forth in the sentence immediately above, the amount of indebtedness of any Joint Venture, which is attributable to the Borrower or any Restricted Subsidiary shall be deemed to equal the amount of indebtedness that would be attributable to the Borrower or any Restricted Subsidiary in accordance with GAAP.
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 of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
Indemnitees” has the meaning specified in Section 10.04(b).
Information” has the meaning specified in Section 10.07.

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Intercreditor Agreements” means each of the (a) Collateral Trust Agreement and (b) any ABL Intercreditor Agreement.
Interest Expense” means, for any period, the consolidated interest expense (net of any interest income) of the Borrower and its Restricted Subsidiaries, plus, to the extent not included in such consolidated interest expense, and to the extent incurred, accrued or payable by the Borrower or its Restricted Subsidiaries, without duplication, (i) interest expense attributable to Financing Leases, (ii) amortization of debt discount and debt issuance costs, (iii) capitalized interest, (iv) non-cash interest expense, (v) any of the above expenses with respect to Indebtedness of another Person Guaranteed by the Borrower or any of its Restricted Subsidiaries and (vi) any interest, premiums, fees, discounts, expenses and losses on the sale of accounts receivable (and any amortization thereof) payable by the Borrower or any Restricted Subsidiary in connection with a receivables financing permitted hereunder, and any yields or other charges or other amounts comparable to, or in the nature of, interest payable by the Borrower or any Restricted Subsidiary under any receivables financing, but excluding (a) amortization of deferred financing charges incurred in respect of the Priority Lien Notes, the Loans, any ABL Facility and any Indebtedness described in clause (a) of the definition thereof, and (b) the write off of any deferred financing fees or debt discount, all as determined on a consolidated basis and in accordance with GAAP. Interest Expense shall be determined for any period after giving effect to any net payments made or received and costs incurred by the Borrower and its Restricted Subsidiaries with respect to any related interest rate Hedging Agreement permitted hereunder.
Interest Payment Date” means, (a) as to any Eurocurrency Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date; provided, however, that if any Interest Period exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates and (b) as to any Base Rate Loan, the last Business Day of each March, June, September and December and the Maturity Date.
Interest Period” means, as to each Eurocurrency Rate Loan, the period commencing on the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan and ending on the date one, two, three or six months thereafter, or, if available to all Lenders making such Eurocurrency Rate Loan, twelve months thereafter (or such shorter period as may be agreed by the relevant Lenders and the Administrative Agent), as selected by the Borrower in its Borrowing Notice, or, as otherwise contemplated by the first proviso of Section 2.02(a); provided that:
(i)    any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the immediately preceding Business Day;
(ii)    any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clause (iii) below, end on the last Business Day of a calendar month; and

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(iii)    with respect to each Facility, no Interest Period shall extend beyond its applicable Maturity Date or Revolving Facility Maturity Date, as applicable.
Interest Rate Determination Date” means, with respect to any Interest Period, the date that is two Business Days prior to the first day of such Interest Period.
Internally Generated Cash” means, with respect to any period, any cash of the Borrower or any Restricted Subsidiary generated during such period, excluding Net Proceeds, Net Insurance/Condemnation Proceeds and any cash that is generated from an incurrence of Indebtedness, an issuance of Equity Interests or a capital contribution.
“Interpolated Rate” means, at any time, for any Interest Period, the rate per annum (rounded to the same number of decimal places as the LIBO Screen Rate) 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 LIBO Screen Rate for the longest period for which the LIBO Screen Rate is available) that is shorter than the Impacted Interest Period; and (b) the LIBO Screen Rate for the shortest period (for which that LIBO Screen Rate is available) that exceeds the Impacted Interest Period, in each case, at such time.
Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Capital Stock or other securities of another Person, (b) a loan, advance (excluding intercompany liabilities incurred in the ordinary course of business in connection with the cash management operations of the Borrower and its Subsidiaries) or capital contribution to, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit. For purposes of covenant compliance, the amount of any Investment shall be (i) the amount actually invested, as determined immediately prior to the time of each such Investment, without adjustment for subsequent increases or decreases in the value of such Investment minus (ii) the amount of dividends or distributions received in connection with such Investment and any return of capital and any payment of principal received in respect of such Investment that in each case is received in cash or Cash Equivalents.
IP Rights” has the meaning specified in Section 5.18.
IP Security Agreements” means the Copyright Security AgreementAgreements, the Trademark Security Agreement and the Patent Security Agreement.
IRBs” means the City of St. Louis, Missouri Taxable Industrial Development Revenue Bonds (Peabody Energy Corporation Project), Series 2010, in an aggregate principal amount not to exceed $60,000,000, as evidenced by that certain Trust Indenture, dated as of March 1, 2011, between the City of St. Louis, Missouri and U.S. Bank, National Association, St. Louis, Missouri.
IRS” means the United States Internal Revenue Service.

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ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (as the same may be amended from time to time).
Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the applicable L/C Issuer and the Borrower (or any Subsidiary) or in favor the applicable L/C Issuer and relating to any such Letter of Credit.
Joint Venture” means any Person (a) other than a Subsidiary in which the Borrower or its Subsidiaries hold an ownership interest or(a) that is not a Subsidiary and (b) which is an unincorporated joint venture of the Borrower or anysuch Subsidiary is a general partner or a joint venturer; provided, however, that Middlemount Coal Pty Ltd shall be considered a Joint Venture for this definition.
Junior Collateral Trustee” means Wilmington Trust, National Association, in its capacity as Junior Collateral Trustee pursuant to the Collateral Trust Agreement, together with its successors and assigns in such capacity.
Junior Lien Indebtedness” means any Indebtedness (other than any ABL Facility) that is secured by a junior Lien to the Lien securing the Secured Obligations and that was permitted to be incurred and so secured hereunder.
Laws” means, as to any Person, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, regulations, ordinances, codes, and determinations of arbitrators or courts or other Governmental Authorities, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
L/C Advance” means, with respect to each Incremental Revolving Lender, such Incremental Revolving Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage. All L/C Advances shall be denominated in Dollars.
L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed in accordance with Section 2.03(c) or refinanced as a Borrowing. All L/C Borrowings shall be denominated in Dollars.
L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
L/C Issuance Limit” means, at the time of the issuance of a Letter of Credit by the applicable L/C Issuer, with respect to (a) each 2017 L/C Issuer (as defined in the Second Amendment), in its capacity as an L/C Issuer, the amount set forth opposite its name on Schedule 2I to the SecondSeventh Amendment (or such other amount as may be agreed to in writing by such 2017 L/C Issuer and the Borrower from time to time with prompt notice to the Administrative Agent), (b) each 2017 L/C Issuer (as defined in the Third Amendment), in its capacity as an L/C Issuer, the amount set forth opposite its name on Schedule 2 to the Third Amendment (or such other amount as may be agreed to in writing by such 2017 L/C Issuer and the Borrower from time to time with prompt notice to the Administrative Agent), or (c) any

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other L/C Issuer, such amount as may be agreed to by such L/C Issuer and the Borrower in writing from time to time with prompt notice to the Administrative Agent.
L/C Issuer” means each 2017 L/C Issuer (as defined in the Second Amendment) and each 2017 L/C Issuer (as defined in the Third Amendment)JPMorgan Chase Bank, N.A., Goldman Sachs Bank USA, Credit Suisse AG, Cayman Islands Branch, Bank of Montreal, Chicago Branch, Commerce Bank, Deutsche Bank AG New York Branch and Bank of America, N.A., each in its capacity as issuer of Letters of Credit hereunder, and such other Incremental Revolving Lender or Incremental Revolving Lenders that agree to act as L/C Issuer at the request of the Borrower, and any successor issuer of Letters of Credit hereunder or any of their respective Affiliates, in each case in its capacity as issuer of any Letter of Credit. Each L/C Issuer may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such L/C Issuer , in which case the term “L/C Issuer” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate (it being agreed that such L/C Issuer shall, or shall cause such Affiliate to, comply with the requirements of Section 2.03 with respect to such Letters of Credit).
L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.08. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
Lender” has the meaning specified in the introductory paragraph hereto and includes any (a) Term Lender, (b) Revolving Lender, (c) Incremental Lender, and (cd) Refinancing Facility Lender.
Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.
Letter of Credit” means a letter of credit or Bank Guarantee issued hereunder. Letters of Credit may be issued in Dollars or in an Alternative Currency.
Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by any L/C Issuer.
Letter of Credit Expiration Date” means the day that is five days prior to the Incremental Revolving Facility Maturity Date then in effect (or, if such day is not a Business Day, the preceding Business Day) (or such later date referred to in Section 2.03(a)(ii)(B)).
Letter of Credit Fee” has the meaning specified in Section 2.03(i).
“LIBO Screen Rate” means, for any day and time, with respect to any Borrowing of Eurocurrency Rate Loans for any Interest Period, the London interbank offered rate as

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administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for Dollars for a period equal in length to such Interest Period as displayed on such day and time on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, 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, provided that if the LIBO Screen Rate shall be less than zero, such rate shall be deemed to zero for the purposes of this Agreement.
Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Financing Lease having substantially the same economic effect as any of the foregoing).
Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of a Term Loan, Revolving Loan, Letter of Credit, Incremental Loan or Refinancing Loan.
Loan Documents” means this Agreement, the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, the Sixth Amendment, the Seventh Amendment, the Collateral Trust Agreement, the CTA Amendment (as defined in the Fourth Amendment), Amendment No. 2 to Collateral Trust Agreement, dated as of July 19, 2018, each Note, the Issuer Documents, the Fee Letters, the Guaranty, and each Security Document and any ABL Intercreditor Agreement.
Loan Parties” means, collectively, the Borrower and each Guarantor.
Material Adverse Effect” means a material adverse effect upon (a) the business, assets, operations, property or condition (financial or otherwise) of the Borrower and its Restricted Subsidiaries taken as a whole, (b) the ability of the Borrower and the Guarantors, taken as a whole, to perform their payment obligations under this Agreement or the Guaranty or (c) the validity or enforceability of this or any of the other Loan Documents or the rights or remedies of the Agents, the Collateral Trustee, the Arrangers or the Lenders hereunder or thereunder.
Material Real Property” means (a) any fee owned real property interest held by a Loan Party in an active Mine or any leasehold interest in real property of a Loan Party in an active Mine, (b) any real property owned by a Loan Party or in which a Loan Party has a leasehold interest located on a Reserve Area on the ClosingSeventh Amendment Effective Date that has a net book value in excess of $10,000,000, (c) any real property acquired or otherwise owned by a Loan Party or in which a Loan Party acquires a leasehold interest after the ClosingSeventh Amendment Effective Date located on a Reserve Area that has a total net book value in excess of $25,000,000 and (d) any other fee owned real property interest held by a Loan Party (other than the types of property described in clauses (a) through (c) above) with a total net book value in excess of $10,000,000 as of the date of acquisition of such real property; provided that Material Real Property shall not include (x) any real property that is identified on Schedule 1.01(d), (y) any

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leasehold interests of a Loan Party in commercial real property constituting offices of the Borrower and its Subsidiaries or (z) any Excluded Flood Zone Property; provided that the aggregate total net book value of all Excluded Flood Zone Property acquired after the Fourth Amendment Effective DateApril 11, 2018 does not exceed $50,000,000 in the aggregate as of the date of determination; provided further that, any future coal reserve or access to a coal reserve (x) that is fee owned by a Loan Party or in which a Loan Party has a leasehold interest and (y) that is located adjacent to, contiguous with, or in close proximity to, both geographically and geologically (according to reasonable standards used in the mining industry) an active Mine or Reserve Area, may, in the reasonable discretion of the Administrative Agent (in consultation with the Borrower) and by notice to the Collateral Trustee, be deemed part of an active Mine or Reserve Area and, as a result, a “Material Real Property” in the future.
Maturity Date” means March 31, 2025 (and, with respect to (x) an Incremental Term Facility or Refinancing Term Facility, the date on which such Facility shall become due and payable in full hereunder, as specified in the applicable Incremental Amendment or other amendment hereto and (y) an Incremental Revolving Facility or Refinancing Revolving Facility, the Incremental Revolving Facility Maturity Date with respect thereto or, in the case of a Refinancing Revolving Facility, the date on which such Refinancing Revolving Facility shall become due and payable in full hereunder, in each case, as specified in the applicable Incremental Amendment or other amendment hereto); provided, however, that, if such date is not a Business Day, the Maturity Date shall be the preceding Business Day.
MEPP Claim” means, collectively, the claims of the United Mine Workers of America 1974 Pension Plan, including (a) proof of claim number 4722 and (b) any other claim related to any withdrawal liability under U.S.C. § 1392(c).
Metropolitan Collieries Disposition” means the sale of substantially all of the assets of (or all of the Equity Interests of) Metropolitan Collieries Pty Ltd to the extent permitted by Section 7.05.
Mine” means any excavation or opening into the earth in the United States now and hereafter made from which coal or other minerals are or can be extracted on or from any of the real properties in which any Loan Party holds an ownership, leasehold or other interest.
Minimum Cash Balance” means at least $600,000,000 in Unrestricted Cash on hand of the Borrower and its Restricted Subsidiaries on the effective date of the Plan of Reorganization after giving effect to any distributions paid to certain holders of claims in accordance with the Plan of Reorganization on the Closing Date.
Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
Mortgage” means any mortgages, deeds of trust or similar document (including any fixture filings whether recorded as part of such mortgages or deeds of trust or as separate instruments to the extent necessary in any particular state), substantially in the form of Exhibit J or any such other form reasonably acceptable to the Administrative Agent and the Borrower.
Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make

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contributions, or during the preceding five plan years, has made or been obligated to make contributions.
Net Insurance/Condemnation Proceeds” means an amount equal to: (i) any cash payments or proceeds received by the Borrower or any of its Restricted Subsidiaries (a) under any casualty insurance policy in respect of a covered loss thereunder or (b) as a result of the taking of any assets of the Borrower or any of its Restricted Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of any such assets to a purchaser with such power under threat of such a taking, minus (ii) (a) any actual and reasonable costs incurred by the Borrower or any of its Restricted Subsidiaries in connection with the adjustment or settlement of any claims of the Borrower or such Restricted Subsidiary in respect thereof, and (b) any bona fide direct costs incurred in connection with any sale of such assets as referred to in clause (i)(b) of this definition, including income taxes payable as a result of any gain recognized in connection therewith.
Net Proceeds” means, with respect to any Disposition pursuant to Sections 7.05(c), 7.05(k), 7.05(l) and 7.05(q), the sum of (a) cash and Cash Equivalents actually received by the Borrower or any Restricted Subsidiary in connection with such Disposition (including any cash received by way of deferred payment (excluding, for avoidance of doubt, royalty payments customary in the mining industry) pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) minus (b) solely with respect to Dispositions of assets not constituting Collateral, the sum of (i) (A) the principal amount, premium or penalty, if any, interest and other amounts of any Indebtedness that is secured by such asset and that is required to be repaid in connection with such Disposition (other than Indebtedness under the Loan Documents) or (B) any other required debt payments or required payments of other obligations relating to the Disposition, in each case, with the proceeds thereof, (ii) the reasonable or customary out-of-pocket fees and expenses incurred by the Borrower or its Restricted Subsidiaries in connection with such Disposition (including attorneys’ fees, accountants’ fees, investment banking fees, real property related fees and charges and brokerage and consultant fees), (iii) all Taxes required to be paid or accrued or reasonably estimated to be required to be paid or accrued as a result thereof, (iv) in the case of any Disposition by a non-wholly-owned Restricted Subsidiary or non-wholly-owned Unrestricted Subsidiary, the pro rata portion of the Net Proceeds thereof (calculated without regard to this clause (iv)) attributable to minority or other third party interests and not available for distribution to or for the account of the Borrower or a wholly-owned Restricted Subsidiary as a result thereof and (v) the amount of any reasonable reserve established in accordance with GAAP against any adjustment to the sale price or any liabilities (x) related to any of the applicable assets and (y) retained by the Borrower or any Subsidiary including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations (however, the amount of any subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Proceeds of such Disposition occurring on the date of such reduction).
Non-Recourse Debt” means Indebtedness (a) as to which neither the Borrower nor any of its Restricted Subsidiaries (i) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness) other than a non-recourse pledge of the Equity Interests of any Unrestricted Subsidiary to the extent such Equity Interests do not

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constitute Collateral, (ii) is directly or indirectly liable (as a guarantor or otherwise) other than by virtue of a non-recourse pledge of the Equity Interests of any Unrestricted Subsidiary to the extent such Equity Interests do not constitute Collateral, or (iii) constitutes the lender; (b) no default with respect to which (including any rights that the holders thereof may have to take enforcement action against any Unrestricted Subsidiary) would permit (upon notice, lapse of time or both) any holder of any other Indebtedness (other than the Obligations) of the Borrower or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity; and (c) as to which the lenders thereunder will not have any recourse to the Capital Stock or assets of the Borrower or any of its Restricted Subsidiaries (other than solely the Equity Interests of any Unrestricted Subsidiary to the extent such Equity Interests do not constitute Collateral).
Note” means a promissory note made by the Borrower in favor of a Lender and its registered assigns evidencing Term Loans or Incremental Revolving Loans made by such Lender, substantially in the form of Exhibit C-1 or Exhibit C-2, as applicable.
“NYFRB” means the Federal Reserve Bank of New York.
“NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so determined be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
Obligations” means all advances to, and debts, liabilities and obligations (other than, for the avoidance of doubt, Hedging Obligations or Cash Management Obligations) of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
Open Market Purchase” has the meaning specified in Section 2.20(a).
Organizational 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-US jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

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Other Connection Taxes” means with respect to the Administrative Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, Taxes imposed as a result of a present or former connection between such party and the jurisdiction imposing such Tax (other than connections arising solely from the Administrative Agent or such Lender or such L/C Issuer (or such other recipient) having executed, delivered, become a party to, or performed its obligations or received a payment under, or enforced, received or perfected a security interest under, or engaged in any other transaction pursuant to this Agreement, any Note or any other Loan Document, or sold or assigned an interest in any Loan or Loan Document).
Other Taxes” means all present or future stamp, court, intangible, recording, filing, or documentary taxes or any other similar Taxes arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or, enforcement of,or registration of, from the receipt or perfection of a security interest under or otherwise with respect to, this Agreement or any other Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment pursuant to Section 10.13).
Outstanding Amount” means (a) with respect to Term Loans, Revolving Loans, Incremental Loans and Refinancing Loans, as the context may require, on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such Term Loans, Revolving Loans, Incremental Loans or Refinancing Loans, as applicable, occurring on such date, and (b) with respect to any L/C Obligations on any date, the Dollar Equivalent amount of the aggregate outstanding amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts.
Overnight Bank Funding Rate” means, for any day, the greater of (a) the Federal Funds Rate in the case of any amount denominated in Dollars and (b) an overnight raterate comprised of both overnight federal funds and overnight Eurodollar borrowings by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the Administrative Agent or the L/C Issuer, as the case may be, in accordance with banking industry rules on interbank compensation.NYFRB as set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.
Participant” has the meaning specified in Section 10.06(d).
Participant Register” has the meaning specified in Section 10.06(d).
Patent Security Agreement” means the Patent Security Agreement, substantially in the form attached to the Security Agreement dated the Closing Date, or such other form of patent security agreement reasonably acceptable to the Administrative Agent and the Borrower, by certain Loan Parties in favor of the Collateral Trustee, for the benefit of the Secured Parties, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

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Participating Member State” means each state so described in any EMU Legislation.
PATRIOT Act” has the meaning specified in Section 5.17.
Payment in Full” means, the time at which no Lender or L/C Issuer shall have (a) any Commitments, any Loan or other Obligations unpaid, unsatisfied or outstanding (other than in respect of contingent obligations, indemnities and expenses related thereto that are not then payable or in existence) and (b) Letters of Credit outstanding that (i) have not been Cash Collateralized in a manner reasonably satisfactory or (ii) have not had other arrangements made with respect to them that are reasonably satisfactory, in each case, to the applicable L/C Issuer.
PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA, or any successor thereto.
Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Section 412 of the Code or Title IV of ERISA and is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years.
Permitted Acquisition” means any acquisition of all or substantially all the assets of, or all of the Equity Interests in, or merger, consolidation or amalgamation with, a Person or division or line of business of a Person, solely to the extent permitted as an Investment under Section 7.02.
Permitted Amendments” means, with respect to any Facility, an extension of the maturity date of any Loan and/or any Commitments in respect of such Facility by the Accepting Lenders and, in connection therewith, (a) any change in the Applicable Rate with respect to the applicable Loans and/or Commitments of the Accepting Lenders and/or the payment of additional fees (including rate floor, OID, upfront fees or other fees) to the Accepting Lenders (such change and/or payments to be in the form of cash, Equity Interests or other property as agreed by the Borrower and the Accepting Lenders to the extent not prohibited by this Agreement, excluding Section 2.13), (b) the repayment in full on the maturity date of such Facility of the non-extended Loans thereunder and other amounts owing to each of the Lenders who are not Accepting Lenders, (c) to the extent that such Facility is the Term Loan Facility, any change in the amortization schedule and any prepayment premiums with respect to the applicable Loans of the Accepting Lenders, so long as a weighted average life of the extended Loans is no shorter than that of the Term Loans under such Facility prior to such extension, (d) no repayment of any extended Loans shall be permitted unless such repayment is accompanied by an at least pro rata repayment of all earlier maturing Loans (including previously extended Loans) (or all earlier maturing Loans shall otherwise be or have been terminated and repaid in full) and (e) any other change in terms from the Facility so long as (i) they apply after the non-extended maturity date of such Facility or (ii) the non-Accepting Lenders receive the benefit of any such terms that are more restrictive to the Borrower and its Restricted Subsidiaries (it being understood that the benefit of such more restrictive terms may be provided to the non-Accepting Lenders without their consent) as certified by a Responsible Officer of the Borrower in good faith.

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Permitted Asset Swap” means the substantially concurrent purchase and sale, trade-in or exchange of equipment, real property or any other property of a nature or type that is used or useful in a Similar Business or a combination of such equipment, real property or any other property and cash or Cash Equivalents between the Borrower or any of its Restricted Subsidiaries and another Person; provided that the fair market value of the equipment, real property or any other property received is at least as great as the fair market value of the equipment, real property or other property being traded-in or exchanged as determined by the Borrower reasonably and in good faith; provided that any shortfall may be treated as an Investment and shall constitute an Investment for purposes of calculating compliance with Section 7.02.
Permitted Australian Restructuring Transactions” means the restructuring of non-Loan Party Restricted Subsidiaries organized under the laws of Australia, the Netherlands or Gibraltar for tax and organizational efficiency purposes, including the mergers, dissolutions, distributions, contributions, restricted payments, dispositions, intercompany loans, investments, redomiciling and other transactions undertaken to effect such restructuring, in each case, by and among such non-Loan Party Restricted Subsidiaries.
Permitted Real Estate Encumbrances” means the following encumbrances which do not, in any case, individually or in the aggregate, materially detract from the value of any Mine subject thereto or interfere with the ordinary conduct of the business or operations of any Loan Party as presently conducted on, at or with respect to such Mine and as to be conducted following the Closing Date: (a) encumbrances customarily found upon real property used for mining purposes in the applicable jurisdiction in which the applicable real property is located to the extent such encumbrances would be permitted or granted by a prudent operator of mining property similar in use and configuration to such real property (e.g., surface rights agreements, wheelage agreements and reconveyance agreements); (b) rights and easements of (i) owners of undivided interests in any of the real property where the applicable Loan Party or Subsidiary owns less than 100% of the fee interest, (ii) owners of interests in the surface of any real property where the applicable Loan Party or Subsidiary does not own or lease such surface interest, (iii) lessees, if any, of coal or other minerals (including oil, gas and coal bed methane) where the applicable Loan Party or Subsidiary does not own such coal or other minerals, and (iv) lessees of other coal seams and other minerals (including oil, gas and coal bed methane) not owned or leased by such Loan Party or Subsidiary; (c) with respect to any real property in which the Borrower or any Restricted Subsidiary holds a leasehold interest, terms, agreements, provisions, conditions, and limitations (other than royalty and other payment obligations which are otherwise permitted hereunder) contained in the leases granting such leasehold interest and the rights of lessors thereunder (and their heirs, executors, administrators, successors, and assigns), subject to any amendments or modifications set forth in any landlord consent delivered in connection with a Mortgage; (d) farm, grazing, hunting, recreational and residential leases with respect to which the Borrower or any Restricted Subsidiary is the lessor encumbering portions of the real properties to the extent such leases would be granted or permitted by, and contain terms and provisions that would be acceptable to, a prudent operator of mining properties similar in use and configuration to such real properties; (e) royalty and other payment obligations to sellers or transferors of fee coal or lease properties to the extent such obligations constitute a lien not yet delinquent; (f) rights of others to subjacent or lateral support and absence of subsidence rights or to the maintenance of barrier pillars or restrictions on mining within certain areas as provided by any mining lease, unless in each case waived by such other person; and (g) rights of repurchase or reversion when mining and reclamation are completed.

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Permitted Refinancing Increase” means, with respect to the Refinancing of any Indebtedness, an amount equal to (a) any premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such Refinancing, (b) any unpaid accrued interest on the Indebtedness being Refinanced, and (c) any existing commitments unutilized under the Indebtedness being Refinanced.
Permitted Refinancing Indebtedness” mean any Indebtedness issued in exchange for, or the net proceeds of which are used to, extend, refinance, renew, replace, defease or refund (collectively, to “Refinance”), the Indebtedness being Refinanced (or previous refinancings thereof constituting Permitted Refinancing Indebtedness); provided that (a) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so Refinanced (plus any Permitted Refinancing Increase in respect of such Refinancing), (b) such Permitted Refinancing Indebtedness shall have the same obligors and same guarantees as, and be secured on a pari passu basis with, the Indebtedness so Refinanced (provided that the Permitted Refinancing Indebtedness may be subject to lesser guarantees or be unsecured or the Liens securing the Permitted Refinancing Indebtedness may rank junior to the Liens securing the Indebtedness so Refinanced) and, to the extent applicable, the Borrower shall have satisfied the requirements of Section 3.8 of the Collateral Trust Agreement with respect to such Permitted Refinancing Indebtedness, (c) the maturity date is later than or equal to, and the weighted average life to maturity of such Permitted Refinancing Indebtedness is greater than or equal to, in each case, that of the Indebtedness being Refinanced, (d) if the Indebtedness so Refinanced is subordinated in right of payment to the Obligations, then such Permitted Refinancing Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which it is outstanding, is expressly made subordinate in right of payment to the Obligations at least to the extent that the Indebtedness so Refinanced is subordinated to the Obligations and (e) the terms and conditions of any Permitted Refinancing Indebtedness, taken as a whole, are not materially less favorable to the Loan Parties than the terms and conditions of the Indebtedness that is being Refinanced.
Permitted Restructuring Transaction” means the mergers, distributions and other transactions described in Section IV.F.1 and Exhibit IV.F.1 of the Plan of Reorganization undertaken substantially concurrently with, or within the three-month period following, the Closing Date; provided that in connection with any transfers of assets (including Equity Interests) to any Loan Party, such Loan Party shall comply with Section 6.16 with respect to such assets; provided, further, that (i) no such transaction shall result in a change in the ownership of Peabody Investments (Gibraltar) Limited by Gibraltar Holdings, (ii) no such transaction shall result in any material asset becoming an Excluded Asset (other than to the extent such asset is excluded under clause (i)(iii) of the definition of Excluded Asset) and (iii) no such transaction shall involve a transfer of assets (including Equity Interests) or other distribution from a Loan Party to a non-Loan Party or a merger or dissolution of a Loan Party into a non-Loan Party (other than those transactions occurring substantially concurrently with the Closing Date).
Permitted Securitization Programs” means (a) the Existing Securitization Facility and (b) any receivables securitization program pursuant to which the Borrower or any of its Subsidiaries sells receivables and interests in Receivables Assets, which are non-recourse (except for representations, warranties, covenants, repurchase obligations and indemnities, in each case, that

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are reasonably customary for a seller or servicer of assets transferred in connection with such a facility) to the Borrower and the Restricted Subsidiaries providing for the sale, conveyance or contribution to capital of Receivables Assets to Special Purpose Receivables Subsidiary; provided, that the aggregate principal amount outstanding of any Permitted Securitization Program, together with the maximum principal amount outstanding of any ABL Facility, shall not exceed the greater of $250,000,000 and 3.56.5% of Consolidated Net Tangible Assets.
Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
PIC Intercompany Loan Agreement” means that certain Loan Agreement, dated as of April 11, 2012, among Peabody Investments Corp., as lender, and Peabody Energy Australia Pty Ltd, as borrower, with respect to advances made from time to time thereunder.
PIC Intercompany Note” means that certain Promissory Note, dated as of the Closing Date, evidencing the advances made pursuant to the PIC Intercompany Loan Agreement.
Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established by the Borrower or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, by any ERISA Affiliate.
Plan Documents” has the meaning specified in Section 4.01(l).
Plan of Reorganization” means the Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession, dated January 27, 2017, relating to the Borrower and its debtor Subsidiaries, and filed with the Bankruptcy Court under Docket No. 2229, including all exhibits thereto, as the same may be amended, supplemented, modified or waived from time to time in a manner that does not result in a failure of the condition precedent set forth in Section 4.01(l).
Plan Support Agreement” means that certain Plan Support Agreement, dated as of December 22, 2016, among (A) the Debtors (as defined therein), (B) the First Lien Lender Co-Proponents, the Ad Hoc Secured Committee Members and the Ad Hoc Unsecured Noteholders Group (each as defined therein), (C) any Additional Supporting Parties (as defined therein) that subsequently enters into the Plan Support Agreement and (D) each other person that becomes a party in accordance with Section 8(b) thereof, as the same may be amended, supplemented, modified or waived from time to time in a manner that does not result in a failure of the condition precedent set forth in Section 4.01(l).
Platform” has the meaning specified in Section 6.02.
“Pledged Intercompany Indebtedness” has the meaning specified in Section 7.03(f).
“PRB-CO Joint Venture” means PRB-CO JV, LLC, a Delaware limited liability company, formed pursuant to the joint venture agreement between the Borrower and Arch Coal, Inc. to combine their respective Powder River Basin and Colorado assets.

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“PRB-CO Joint Venture Transactions” means the actions to be taken by the Borrower and the Subsidiaries as set forth on Schedule 1.01(f) as of the Seventh Amendment Effective Date and the transactions and actions related or ancillary thereto.
Preferred Stock” means, with respect to any Person, any and all Capital Stock which is preferred as to the payment of dividends or distributions, upon liquidation or otherwise, over another class of Capital Stock of such Person.
Prime Rate” means the rate of interest last quoted in the print edition ofby The Wall Street Journal, Money Rates Section as the Prime Rate (currently defined as the base rate on corporate loans posted by at least 75% of the nation’s thirty (30) largest banks), as in effect from time to time. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. The Administrative Agent or any other Lender may make commercial loans or other loans at rates of interest at, above or below the Prime Rate. as the “Prime Rate” in the U.S. 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 Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.
Priority Lien Notes” means each of (a) the senior secured first lien notes due March 31, 2022 and, (b) the senior secured first lien notes due 2025, and (c) the senior secured first lien notes due 2027, in each case, issued from time to time pursuant to the applicable Priority Lien Notes Indenture.
Priority Lien Notes Indenture” means, collectively, (a) the Indenture, dated as of February 15, 2017, between Peabody Securities Finance Corporation, a Delaware corporation (the “Escrow Issuer”), and the Priority Lien NotesWilmington Trust, National Association, as Trustee (as defined therein), as modified by a Supplemental Indenture dated as of April 3, 2017prior to the date hereof, among the Escrow Issuer, the Borrower, the Guarantors (as defined therein) party thereto and the Priority Lien Notes Trustee, Wilmington Trust, National Association, as Trustee, (as defined therein), as the same may be further amended, restated, supplemented, replaced, refinanced or otherwise modified from time to time in accordance with the Collateral Trust Agreement and (b) the Indenture to be entered into in September 2019 among the Borrower, the Guarantors (as defined therein) party thereto and Regions Bank, as Trustee (as defined therein), as the same may be further amended, restated, supplemented, replaced, refinanced or otherwise modified from time to time in accordance with the Collateral Trust Agreement.
Priority Lien Notes Documents” means the Priority Lien Notes Indenture, the Priority Lien Notes and each other instrument or agreement executed in connection with the Priority Lien Notes and any instrument or agreement executed in connection with any refinancings and replacements thereof to the extent permitted under the Collateral Trust Agreement, as each such

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material instrument or agreement may be amended, restated, supplemented, replaced or otherwise modified from time to time in accordance with the Collateral Trust Agreement.
Priority Lien Notes Indebtedness” means the Indebtedness of Borrower and the other Loan Parties incurred pursuant to or evidenced by the Priority Lien Notes Documents.
Priority Lien Notes Trustee” means Wilmington Trust, National Association, together with its successors and assigns in such capacity.
Production Payments” means with respect to any Person, all production payment obligations and other similar obligations with respect to coal and other natural resources of such Person that are recorded as a liability or deferred revenue on the financial statements of such Person in accordance with GAAP.
Pro Forma Basis” means, for purposes of calculating the financial covenant set forth in Section 7.11, Consolidated Net Tangible Assets, the Total Leverage Ratio under the definition of “Incremental Debt Cap”, in Section 6.13, Section 7.03(j), Section 7.06(e) and Section 7.06(m), the Fixed Charge Coverage Ratio in Section 7.06(m), the First Lien Leverage Ratio under the definition of “Incremental Debt Cap”, or any other test that is based on satisfying a financial ratio or metric, that with respect to any acquisition or disposition (in each case, that would be included in a Pro Forma Basis calculation pursuant to Section 1.03(c)), such acquisition or disposition shall be deemed to have occurred as of the first day of the most recent four fiscal quarter period preceding the date of such acquisition or disposition for which the Borrower has delivered financial statements pursuant to Section 6.01. In connection with the foregoing, (a) with respect to any such acquisition, income statement items attributable to the Person or property or assets acquired shall be included to the extent relating to any period applicable in such calculations to the extent (i) such items are not otherwise included in such income statement items for the Borrower and its Restricted Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth in Section 1.01, (ii) such items are supported by financial statements or other information reasonably satisfactory to the Administrative Agent and (iii) any Indebtedness incurred or assumed by the Borrower or any Subsidiary (including the Person, property or assets acquired) in connection with such acquisition and any Indebtedness of the Person, property or assets acquired which is not retired in connection with such acquisition (A) shall be deemed to have been incurred as of the first day of the most recent four fiscal quarter period preceding the date for such acquisition and (B) if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the most recent four fiscal quarter period preceding the date of such acquisition for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination; and (b) with respect to any such disposition, income statement items attributable to the Person or property or assets being disposed of shall be excluded to the extent relating to any period applicable in such calculations in accordance with the foregoing principles applicable to acquisitions, mutatis mutandis.
Properties” has the meaning specified in Section 5.09(a).
PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

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“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
“QFC Credit Support” has the meaning assigned to it in Section 10.26.
Qualified Equity Interests” means all Equity Interests of a Person other than Disqualified Equity Interests.
Receivables Assets” means any receivable (whether constituting an account, chattel, paper, instrument or general intangible) from time to time originated, acquired or otherwise owned by the Borrower or any Subsidiary, including, with respect to any receivable:
(a)    all of a Subsidiary’s and any Loan Party’s interest in any goods (including returned goods) to the extent related to such receivable, and documentation of title evidencing the shipment or storage of any such goods (including any such returned goods),
(b)    all instruments and chattel paper that may evidence such receivable (and to the extent they do not evidence any asset that is not a receivable),
(c)    all other security interests or liens and property subject thereto from time to time purporting to secure payment of such receivable, whether pursuant to the contract related to such receivable or otherwise, together with all UCC financing statements or similar filings related thereto,
(d)    solely to the extent applicable to such receivable, the rights, interests and claims under the contracts and all guarantees, indemnities, insurance and other agreements (including the related contract) or arrangements of whatever character from time to time supporting or securing payment of such receivable or otherwise relating to such receivable whether pursuant to the contract related to such receivable or otherwise,
(e)    all funds that are received or deemed received by a Loan Party or a Subsidiary in payment of any amounts owed in respect of such receivable (including, without limitation, purchase price, finance charges, fees, interest and all other charges) or are applied to amounts owed in respect of such receivable (including, without limitation, insurance payments and net proceeds of sale or other disposition of repossessed goods or other collateral or property of the related obligor or any other person directly or indirectly liable for the payment of any such receivable and available to be applied thereon),
(f)    the lock-box accounts designated solely as the accounts to receive the proceeds of such receivables and all amounts on deposit therein, and all certificates and instruments, if any, from time to time evidencing such lock-box accounts and amounts on deposit therein,
(g)    all monies due or to become due with respect to any of the foregoing,
(h)    all collections, proceeds and products of any of the foregoing, as defined in the UCC, that are received or are receivable by a Loan Party or a Subsidiary, and

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(i)    all books and records to the extent related to any of the foregoing Receivables Assets.
For the avoidance of doubt, Receivables Assets shall exclude any intercompany receivables, including, without limitation, amounts owing under the PIC Loan Agreement and the PIC Intercompany Note.
Refinance” has the meaning specified in the definition of Permitted Refinancing Indebtedness.
Refinancing” means the refinancing of certain of Borrower’s and its Subsidiaries’ existing Indebtedness, substantially on the terms set forth in the Plan of Reorganization.
Refinancing Facility” has the meaning specified in Section 2.16(a).
Refinancing Facility Effective Date” has the meaning specified in Section 2.16(a).
Refinancing Facility Lender” means any Person who provides a Refinancing Facility.
Refinancing Loan” means, with respect to any Refinancing Facility, an advance made by any Refinancing Facility Lender under such Refinancing Facility.
Refinancing Notes” has the meaning specified in Section 7.03(n).
Refinancing Revolving Facility” has the meaning specified in Section 2.16(a).
Refinancing Term Facility” has the meaning specified in Section 2.16(a).
Register” has the meaning specified in Section 10.06(c).
Related Agreements” means, collectively, the Priority Lien Notes Documents, the Rights Offering Documents, the documents evidencing the Existing Securitization Facility, the documents governing the Convertible Securities and executed in connection therewith and all other documents executed in connection with the effectiveness of the Plan of Reorganization.
Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, attorneys and advisors of such Person and of such Person’s Affiliates.
Related Party Transaction” has the meaning specified in Section 7.08.
Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.
Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Term Loans, Incremental Revolving Loans or other Incremental Loans, a Borrowing Notice and (b) with respect to an L/C Credit Extension, a Letter of Credit Application.

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Required Facility Lenders” means, as of any date of determination, with respect to any Facility, Lenders under such Facility holding more than 50% of the Total Outstandings (and, if such Facility is an Incrementala Revolving Facility, aggregate unused Incremental Revolving Commitments) with respect to such Facility; provided (a) if such Facility is an Incrementala Revolving Facility, the aggregate amount of each Incremental Revolving Lender’s risk participation and funded participation in L/C Obligations shall be deemed “held” by such Incremental Revolving Lender for purposes of this definition and (b) the unused Commitment of, and the portion of such Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded from both the numerator and the denominator for purposes of making a determination of Required Facility Lenders.
Required Lenders” means, as of any date of determination, Lenders holding more than 50% of the sum of the (a) Total Outstandings (with the aggregate amount of each Incremental Revolving Lender’s risk participation and funded participation in L/C Obligations being deemed “held” by such Incremental Revolving Lender for purposes of this definition) and (b) aggregate unused Incremental Revolving Commitments; provided that the unused Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded from both the numerator and the denominator for purposes of making a determination of Required Lenders.
Required Revolving Lenders” means, as of any date of determination, Incremental Revolving Lenders holding more than 50% of the sum of the (a) Total Revolving Credit Outstandings (with the aggregate amount of each Incremental Revolving Lender’s risk participation and funded participation in L/C Obligations being deemed “held” by such Incremental Revolving Lender for purposes of this definition) and (b) aggregate unused Incremental Revolving Commitments; provided that the unused Incremental Revolving Commitments of, and the portion of the Total Revolving Credit Outstandings held or deemed held by, any Defaulting Lender shall be excluded from both the numerator and the denominator for purposes of making a determination of Required Revolving Lenders.
Requirement of Law” means as to any Person, the Organizational Documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
Reserve Area” means (a) the real property owned in fee by any Loan Party or in which a Loan Party has a leasehold interest that is part of the areas listed on Schedule 1.01(e) as of the Seventh Amendment Effective Date and (b) any real property constituting coal reserves or access to coal reserves owned in fee by any Loan Party or in which a Loan Party has a leasehold interest, acquired after the ClosingSeventh Amendment Effective Date, that is not an active Mine.
Responsible Officer” means the chief executive officer, president or any vice president of the Borrower or any applicable Subsidiary and, in addition, any Person holding a similar position or acting as a director or managing director with respect to any other Foreign Subsidiary of the Borrower or, with respect to financial matters, the chief financial officer, treasurer or assistant treasurer of the Borrower.

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Restricted Payment” means (a) any dividend or other distribution (whether in cash, securities or other property) by the Borrower or any Restricted Subsidiary with respect to its Capital Stock, or any payment (whether in cash, securities or other property) by the Borrower or any Restricted Subsidiary, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any of its Capital Stock, or on account of any return of capital to its stockholders, partners or members (or the equivalent Person thereof) and (b) any payment or prepayment of principal of, premium, if any, or interest on, or redemption, purchase, retirement, defeasance (including in-substance or legal defeasance), sinking fund or similar payment with respect to, any unsecured Indebtedness, Subordinated Indebtedness or Junior Lien Indebtedness.
Restricted Subsidiary” means any Subsidiary that is not an Unrestricted Subsidiary.
Revaluation Date” means, with respect to any Letter of Credit denominated in an Alternative Currency, each of the following: (a) each date of issuance of such Letter of Credit, (b) the first Business Day of each month and (c) during the existence of an Event of Default, such additional dates as the Administrative Agent or the applicable L/C Issuer shall determine or the Required Revolving Lenders shall require.
Rights Offering Documents” means the documents evidencing the rights offering of Equity Interests in the Borrower to eligible holders of the Borrower’s pre-petition unsecured and second lien creditors under the Plan of Reorganization in an aggregate amount equal to at least $750,000,000.
“Revolving Borrowing” means a borrowing consisting of simultaneous Revolving Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Revolving Lenders pursuant to Section 2.01(b).
“Revolving Commitment” means, as to each Revolving Lender, its obligation to (a) make Revolving Loans or issue Letters of Credit to the Borrower pursuant to Section 2.01(b) and (b) purchase participations in L/C Obligations, in an aggregate principal amount at any one time outstanding under such clauses (a) and (b) not to exceed the amount (x) as of the Seventh Amendment Effective Date, set forth opposite such Lender’s name on Schedule 2.01 under the caption “Revolving Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, or (y) in the case of any Incremental Revolving Facility, in the applicable Incremental Amendment, in each case, as such amount may be adjusted from time to time in accordance with this Agreement. As of the Seventh Amendment Effective Date, the aggregate amount of (i) the Revolving Commitments under the 2017 Incremental Revolving Facility is $25,000,000 and (ii) the Revolving Commitments under the 2019 Refinancing Revolving Facility is $540,000,000.
“Revolving Facility” means, at any time, the aggregate Revolving Lenders’ Revolving Commitments at such time.
“Revolving Facility Maturity Date” means (i) with respect to the 2017 Incremental Revolving Facility, November 17, 2020, and (ii) with respect to the 2019 Refinancing Revolving Facility, the earlier of (x) September 17, 2023, and (y) if on any date (the

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“Springing Maturity Date”), the maturity date for any then-outstanding Priority Lien Notes (or any Indebtedness that amends, restates, amends and restates, modifies, supplements, refinances or replaces the Priority Lien Notes in whole or in part) shall fall within six (6) months of the Springing Maturity Date, then, the Revolving Facility Maturity Date with respect to the 2019 Refinancing Revolving Facility shall be the Springing Maturity Date; provided, however, that, in each case of clauses (x) and (y), if such date is not a Business Day, the Revolving Facility Maturity Date shall be the preceding Business Day.
“Revolving Lender” means any Person who provides any portion of the Revolving Commitments.
“Revolving Loan” means an advance made by a Revolving Lender pursuant to Section 2.01(b) with respect to its Revolving Commitment.
S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and any successor thereto.
Same Day Funds” means (a) with respect to disbursements and payments in Dollars, immediately available funds and (b) with respect to disbursements and payments in an Alternative Currency, same day funds as may be determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, to be customary in the place of disbursement or payment for the settlement of international banking transactions in the relevant Alternative Currency.
Sanctions” has the meaning specified in Section 5.17.
Sanctions Laws” has the meaning specified in Section 5.17.
SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
Second Amendment” means that certain Amendment No. 2 to Credit Agreement, dated as of November 17, 2017, by and among the Borrower, the other Reaffirming Parties (as defined therein), the Incremental Revolving Lenders party thereto and the Administrative AgentGoldman Sachs Bank USA as the administrative agent.
Second Amendment Effective Date” means November 17, 2017.
“Secured Cash Management Agreement” means any Cash Management Agreement that is entered into by and between the Borrower or any Restricted Subsidiary and any Cash Management Bank.
Secured Cash Management Obligations” means all advances to, and debts, liabilities and obligations of the Borrower or any Restricted Subsidiary arising under any SpecifiedSecured Cash Management Agreement.
Secured Hedging Agreement” means any Hedging Agreement between the Borrower or a Restricted Subsidiary, on the one hand, and any Lender, an Agent, an Arranger or an Affiliate of any of the foregoing (or with any Person that was a Lender, an Agent, an Arranger or an Affiliate

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of the foregoing when such Hedging Agreement was entered into) (any such counterparty, a “Hedge Bank”).
Secured Hedging Obligations” means all debts, liabilities and obligations of the Borrower or any Restricted Subsidiary in respect of any Secured Hedging Agreement.
Secured Obligations” means the Obligations, the Secured Hedging Obligations and the Secured Cash Management Obligations. Notwithstanding anything to the contrary herein, the “Secured Obligations” shall not include any Excluded Hedging Obligations.
Secured Parties” means, collectively, the Agents, the Collateral Trustee, the Arrangers, the Lenders, the L/C Issuers, any Cash Management Bank and, with respect to any Secured Hedging Agreement, any Hedge Bank.
Security Agreement” means that certain Pledge and Security Agreement, dated as of the Closing Date, substantially in the form of Exhibit G or such other form reasonably acceptable to the Administrative Agent, the Collateral Trustee and the Borrower, among the Borrower, the Restricted Subsidiaries from time to time party thereto and the Collateral Trustee, for the benefit of the Secured Parties, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
Security Documents” means, collectively, the Security Agreement, the Gibraltar Pledge Agreement, the IP Security Agreements, the Mortgages, the Collateral Trust Agreement, each of the pledge agreements and supplements thereto, security agreements and supplements thereto, and other similar agreements delivered to Administrative Agent and Lenders pursuant to Section 6.16, and any other documents, agreements or instruments that grant or purport to grant a Lien on any assets of the Borrower or any other Loan Party in favor of the Collateral Trustee to secure the Secured Obligations.
“Seventh Amendment” means that certain Amendment No. 7 to Credit Agreement, dated as of September 17, 2019, by and among the Borrower, the other Reaffirming Parties (as defined therein), the Lenders party thereto and the Administrative Agent.
“Seventh Amendment Effective Date” means September 17, 2019.
Similar Business” means any of the following, whether domestic or foreign: the mining, production, marketing, sale, trading and transportation (including, without limitation, any business related to terminals) of natural resources including coal, ancillary natural resources and mineral products, exploration of natural resources, any acquired business activity so long as a material portion of such acquired business was otherwise a Similar Business, and any business that is ancillary or complementary to the foregoing.
“Sixth Amendment” means that certain Amendment No. 6 to Credit Agreement, dated as of September 17, 2019 by and among the Borrower, the other Reaffirming Parties (as defined therein), the Lenders party thereto and Goldman Sachs Bank USA, as the administrative agent.
“Sixth Amendment Effective Date” means September 17, 2019.

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Solvent” means, with respect to any Person, that as of the date of determination, both (i) (a) the sum of such Person’s debt (including contingent liabilities) does not exceed the present fair saleable value of such Person’s present assets; (b) such Person’s capital is not unreasonably small in relation to its business as contemplated on the ClosingSeventh Amendment Effective Date and reflected in the projections delivered pursuant to Section 4.01(a)(xiiix) or with respect to any transaction contemplated to be undertaken after the ClosingSeventh Amendment Effective Date; and (c) such Person has not incurred and does not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts as they become due (whether at maturity or otherwise); and (ii) such Person is “solvent” within the meaning given that term and similar terms under the Bankruptcy Code and other applicable laws relating to fraudulent transfers and conveyances. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standards No. 5).
Special Purpose Receivables Subsidiary” means P&L Receivables Company LLC and any other direct or indirect Subsidiary of the Borrower established in connection with a Permitted Securitization Program for the acquisition of Receivables Assets or interests therein that is organized in a manner intended to reduce the likelihood that it would be substantively consolidated with the Borrower or any of the Restricted Subsidiaries in the event the Borrower or any such Restricted Subsidiary becomes subject to a proceeding under any Debtor Relief Law.
Specified Cash Management Agreement” means any Cash Management Agreement that is entered into by and between the Borrower or any Restricted Subsidiary and any Cash Management Bank and which has been designated at the election of the Borrower as a “Specified Cash Management Agreement” by written notice given by the Borrower and the Cash Management Bank to the Administrative Agent.
Specified Representations” means, with respect to any Permitted Acquisition, the representations and warranties contained in Sections 5.01(a)(i), 5.01(b)(ii), 5.02(a), 5.02(b)(i), 5.02(b)(iii), 5.04, 5.14, 5.17, 5.19 and 5.21; provided, that for purposes of this definition, (a) the defined term “Loan Parties” as used in such representations and warranties shall mean the Borrower and each Guarantor in existence immediately prior to the consummation of the Permitted Acquisition, (b) clause (a) of the defined term “Material Adverse Effect” as used in Section 5.02 shall relate to the Borrower and its Restricted Subsidiaries immediately prior to the ClosingSeventh Amendment Effective Date and (c) the representation and warranty contained in Section 5.14(b) shall apply only to the Borrower and the Loan Parties (as such term is used in clause (a) of this proviso).
Specified Subsidiary” means each of Gibraltar Holdings, Peabody International Investments, Inc., Peabody International Holdings, LLC, each other Subsidiary, whether now owned or hereafter formed or acquired, that directly holds Equity Interests in Gibraltar Holdings at any time, and any successor to any of the foregoing; provided that in no event shall any Guarantor be designated as a Specific Subsidiary so long as (i) any Equity Interests owned by such Guarantor constitute Collateral and (ii) the Equity Interests of such Guarantor constitutes Collateral.

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Spot Rate” for a currency means the spot rate determined by the Administrative Agent or the L/C Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that the Administrative Agent or the applicable L/C Issuer may obtain such spot rate from another financial institution designated by the Administrative Agent if such Person does not have as of the date of determination a spot buying rate for any such currency; and provided further that the applicable L/C Issuer may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in an Alternative Currency.
“Springing Maturity Date” has the meaning specified in the definition of “Revolving Facility Maturity Date”.
Sterling” and “£” means the lawful currency of the United Kingdom.
Subordinated Indebtedness” means any Indebtedness of the Borrower and its Restricted Subsidiaries that is contractually subordinated to the Indebtedness under the Loan Documents.
Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.
“Supported QFC” has the meaning assigned to it in Section 10.26.
Surety Bonds” means surety bonds obtained by the Borrower or any Restricted Subsidiary consistent with market practice and the indemnification or reimbursement obligations of the Borrower or such Restricted Subsidiary in connection therewith.
Syndication Agent” has the meaning specified in the preamble hereto.
“Syndication Agents” means, as of the Seventh Amendment Effective Date, JPMorgan Chase Bank, N.A. and Goldman Sachs Bank USA.
Tangible Assets” means at any date, with respect to any Person, (a) the sum of all amounts that would, in accordance with GAAP, be set forth opposite the caption “total assets” (or any like caption) on a consolidated balance sheet of such Person at such date minus (b) the sum of all amounts that would, in accordance with GAAP, be set forth opposite the captions “goodwill” or other intangible categories (or any like caption) on a consolidated balance sheet of such Person on such date.
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.

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Term Lender” means any Person who provides theholding Term Loan FacilityLoans.
Term Loan” means an advance made by any Lender under the Term Loan Facilitypursuant to Section 2.01(a) or any applicable Incremental Amendment or other amendment pursuant to the terms hereof.
Term Loan Borrowing” means a borrowing consisting of simultaneous Term Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Term Loan Lenders pursuant to Section 2.01(a) or otherwise pursuant to the terms of this Agreement.
Term Loan Commitment” means, as to each Lender, its obligation to make Term Loans to the Borrower pursuant to Section 2.01 in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 under the caption “Term Loan Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Lender becomes a party hereto or as described in the First Amendment or Fourth Amendment, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate amount of Term Loan Commitments as of the Closing Date was $950,000,000. The aggregate amount of the 2017 Refinancing Term Commitments (as defined in the First Amendment) on the First Amendment Effective Date was $647,625,000. The aggregate amount of the 2018 Refinancing Term Commitments (as defined in the Fourth Amendment) on the Fourth Amendment Effective Date (after giving effect to the $46,005,937.47 prepayment made pursuant to Section 9(b) of the Fourth Amendment) is $400,000,000.
Term Loan Facility” means, at any time, the aggregate principal amount of the Term Loans of all Lenders outstanding at such time.
Third Amendment” means that certain Amendment No. 3 to Credit Agreement, dated as of December 18, 2017, by and among the Borrower, the other Reaffirming Parties (as defined therein), the Incremental Revolving Lenders party thereto and the Administrative AgentGoldman Sachs Bank USA as the administrative agent.
Third Amendment Effective Date” means the Amendment No. 3 Effective Date (as defined in the Third Amendment).
Threshold Amount” means $75,000,000.
Ticking Fee” has the meaning assigned in Section 2.09(c).
Total Leverage Ratio” means, as of any date of determination, the ratio of (i) Consolidated Net Total Debt as of the date of the financial statements most recently delivered by the Borrower pursuant to Section 6.01(a) or (b), as applicable, to (ii) Consolidated EBITDA for the period of the four consecutive fiscal quarters ending as of the date of such financial statements.
Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C Obligations.

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Total Revolving Credit Outstandings” means the aggregate Outstanding Amount of all Incremental Revolving Loans and L/C Obligations.
Trademark Security Agreement” means the Trademark Security Agreement, substantially in the form attached to the Security Agreement dated the Closing Date, or such other form of trademark security agreement reasonably acceptable to the Administrative Agent, by certain Loan Parties in favor of the Collateral Trustee, for the benefit of the Secured Parties, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
Transactions” means, collectively, (a) the Exit, (b) the Refinancing, (c) the incurrence of the Loans under the Loan Documents, (d) the transactions contemplated by the Rights Offering Documents, (e) the issuance of the Convertible Securities and the assumption by the Borrower of the obligations under the Priority Lien Notes, (f) the incurrence of any Permitted Securitization Program, (g) the availability of the Minimum Cash Balance and (h) the payment of the fees and expenses incurred in connection with any of the foregoing clauses (a)-(g) hereof.
Transaction Costs” has the meaning specified in the preliminary statements to this Agreement.
Type” means, with respect to a Loan, its character as a Base Rate Loan or a Eurocurrency Rate Loan.
UCC” means the Uniform Commercial Code as in effect in the applicable state of jurisdiction.
UCP” means the Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 600, as the same may be amended from time to time.
Unfunded Pension Liability” means the excess of a Pension Plan’s accrued benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the actuarial assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.
United States” and “US” mean the United States of America.
Unreimbursed Amount” means the amount of any unreimbursed drawing (expressed in Dollars or in the amount of the Dollar Equivalent thereof in the case of a Letter of Credit denominated in an Alternative Currency) on any Letter of Credit or, without duplication, the amount of any L/C Borrowing that has been deemed to be incurred in respect thereof and has not been repaid by the Borrower.
Unrestricted Cash” means the aggregate amount of cash and Cash Equivalents held in accounts on the consolidated balance sheet of Borrower and its Restricted Subsidiaries to the extent that the use of such cash for application to payment of the Obligations or other Indebtedness is not prohibited by law or any contract or other agreement and such cash is and Cash Equivalents are

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free and clear of all Liens (other than Liens in favor of the Collateral Trustee) and Liens permitted pursuant to Section 7.01(p)(i) hereof.
Unrestricted Subsidiary” means (a) any Subsidiary of the Borrower that becomes an Unrestricted Subsidiary in accordance with Section 6.13, (b) any Special Purpose Receivables Subsidiary; provided that any Special Purpose Receivables Subsidiary shall, upon termination of such Permitted Securitization Program (other than as a result of an event of default thereunder unless and until the obligations thereunder are repaid in full), cease to be an Unrestricted Subsidiary, or (c) anyas of the Seventh Amendment Effective Date, any Subsidiary listed on Schedule 1.01(b); provided that in no event shall any of Peabody Investments Corp., Peabody IC Funding Corp., Gibraltar Holdings, Peabody Investments (Gibraltar) Limited, Peabody Global Funding, LLC, Peabody International Investments, Inc. (and any successor thereto), Peabody International Holdings, LLC, and any other Subsidiary, whether now owned or hereafter formed or acquired, that directly holds Equity Interests in Gibraltar Holdings at any time be or be designated as an Unrestricted Subsidiary.
U.S. Government Obligations” means obligations issued or directly and fully guaranteed or insured by the United States of America or by any agency or instrumentality thereof,; provided that the full faith and credit of the United States of America is pledged in support thereof.
“U.S. Special Resolution Regimes” has the meaning assigned to it in Section 10.26.
Voting Stock” means, with respect to any Person, such Person’s Equity Interest having the right to vote for the election of directors of such Person under ordinary circumstances.
Weighted Average Yield means with respect to any Loan, on any date of determination, the weighted average yield to maturity, in each case, based on the interest rate applicable to such Loan on such date and giving effect to all upfront or similar fees or original issue discount payable with respect to such Loan.
Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
1.02    Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a)    The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organizational Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be

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construed to include such Person’s successors and assigns, (iii) the words “herein,” “hereof”, “hereto” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) all references to “wholly-owned” when referring to a Subsidiary of the Borrower shall mean a Subsidiary of which all of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned directly or indirectly by the Borrower or another wholly-owned Subsidiary of the Borrower, (vi) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vii) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
(b)    In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”
(c)    Section headings herein and in the other Loan Documents are included for convenience of reference only, shall not constitute a part hereof, shall not be given any substantive effect and shall not affect the interpretation of this Agreement or any other Loan Document.
1.03    Accounting Terms.
(a)    Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein.
(b)    Changes in GAAP. If at any time any Accounting Change would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such Accounting Change as if such Accounting Change has not been made (subject to the approval of the Required Lenders); provided that, until so amended, all financial covenants, standards and terms in this Agreement shall continue to be calculated or construed as if such Accounting Change had not occurred. Notwithstanding any other provision contained herein, the definitions set forth in this Agreement and any financial calculations required by the Loan Documents shall be computed to exclude all liabilities related to operating leases, as defined by Financial Accounting Standards Board Accounting Standards Codification 842 (or any successor provision), are excluded from the definition of Indebtedness and payments related to operating leases are not included in interest expenses in part or in whole.

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(c)    Pro Forma Basis Calculation. Notwithstanding anything herein to the contrary, the parties hereto acknowledge and agree that all calculations of (i) the Total Leverage Ratio and the First Lien Leverage Ratio for purposes of determining compliance with the Incremental Debt Cap, Section 6.13, Section 7.03(j), Section 7.06(e), Section 7.06(m) and Section 7.11, (ii) Consolidated Net Tangible Assets, (iii) the Fixed Charge Coverage Ratio for purposes of determining compliance with Section 7.06(m)[reserved], or (iv) any other test that is based on satisfying a financial ratio or metric, shall be made on a Pro Forma Basis. (A) with respect to any acquisition by the Borrower or its Restricted Subsidiaries of any Person, property or assets, if the Consolidated EBITDA for the acquired Person or business for the most recent four fiscal quarter period for which financial statements are available is equal to or greater than 5% of the Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for such period and (B) with respect to any disposition by the Borrower or its Restricted Subsidiaries of any Person, property or assets, if the Consolidated EBITDA for the Person or business being disposed of for the most recent four fiscal quarter period for which financial statements are available was equal to or exceeded 5% of the Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for such period. With respect to the above Pro Forma Basis calculations, in the event that the relevant entity or property, which is being acquired or disposed, reports its financial results on a semi-annual basis, the Administrative Agent and the Borrower may utilize the two most recent semi-annual financial results for purposes of making such calculation and such above determination in a manner similar to the above that is mutually agreeable.
1.04    Exchange Rates; Currency Equivalents.
(a)    The Administrative Agent or the applicable L/C Issuer, as applicable, shall determine the Spot Rates as of each Revaluation Date to be used for calculating Dollar Equivalent amounts of L/C Credit Extensions and Outstanding Amounts of L/C Obligations denominated in Alternative Currencies. Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur. Except for purposes of financial statements delivered by Loan Parties hereunder or calculating financial covenants hereunder or except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent amount as so determined by the Administrative Agent or the applicable L/C Issuer, as applicable.
(b)    Wherever in this Agreement in connection with the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Letter of Credit is denominated in an Alternative Currency, such amount shall be the relevant Alternative Currency Equivalent of such Dollar amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as determined by the Administrative Agent or the applicable L/C Issuer, as the case may be.
1.05    Additional Alternative Currencies.
(a)    The Borrower may from time to time request that Letters of Credit be issued in a currency other than those specifically listed in the definition of “Alternative Currency”; provided that such requested currency is a lawful currency (other than Dollars) that is readily available and freely transferable and convertible into Dollars. In the case of any such request with respect to the

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issuance of Letters of Credit, such request shall be subject to the approval of the Administrative Agent and the applicable L/C Issuer.
(b)    Any such request shall be made to the Administrative Agent not later than 11:00 a.m., ten (10) Business Days prior to the date of the desired Credit Extension (or such other time or date as may be agreed by the Administrative Agent and the L/C Issuer, in their sole discretion). The Administrative Agent shall promptly notify the applicable L/C Issuer thereof. Each L/C Issuer shall notify the Administrative Agent, not later than 11:00 a.m., eight (8) Business Days after receipt of such request whether it consents, in its sole discretion, to the issuance of Letters of Credit in such requested currency.
(c)    Any failure by an L/C Issuer to respond to such request within the time period specified in the preceding sentence shall be deemed to be a refusal by such L/C Issuer to permit Letters of Credit to be issued in such requested currency. If the Administrative Agent and the applicable L/C Issuer consent to the issuance of Letters of Credit in such requested currency, the Administrative Agent shall so notify the Borrower and such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any Letter of Credit issuances by such L/C Issuer. If the Administrative Agent shall fail to obtain consent to any request for an additional currency under this Section 1.05, the Administrative Agent shall promptly so notify the Borrower.
1.06    Change of Currency.
(a)    Each obligation of the Borrower to make a payment denominated in the national currency unit of any member state of the European Union that adopts the Euro as its lawful currency after the date hereof shall be redenominated into Euro at the time of such adoption (in accordance with the EMU Legislation). If, in relation to the currency of any such member state, the basis of accrual of interest expressed in this Agreement in respect of that currency shall be inconsistent with any convention or practice in the London interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such convention or practice with effect from the date on which such member state adopts the Euro as its lawful currency.
(b)    Each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect the adoption of the Euro by any member state of the European Union and any relevant market conventions or practices relating to the Euro.
(c)    Each provision of this Agreement also shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect a change in currency of any other country and any relevant market conventions or practices relating to the change in currency.
1.07    Times of Day. Unless otherwise specified, all references herein to times of day shall be references to New York City time (daylight or standard, as applicable).
1.08    Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of the stated amount

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of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
1.09    Negative Covenant Compliance. For purposes of determining whether the Borrower and its Restricted Subsidiaries comply with any exception to the negative covenants contained in Section 7.01, Section 7.02 and 7.03 where compliance with any such exception is based on a financial ratio or metric being satisfied, it is understood that (a) compliance shall be measured at the time when the relevant event is undertaken, as such financial ratios and metrics are intended to be “incurrence” tests and not “maintenance” tests and (b) correspondingly, any such ratio and metric shall only prohibit the Borrower and its Restricted Subsidiaries from creating, incurring, assuming, suffering to exist or making, as the case may be, any new Liens, Indebtedness or Investments, but shall not result in any previously permitted Liens, Indebtedness or Investments ceasing to be permitted hereunder.
1.10    Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized and acquired on the first date of its existence by the holders of its Equity Interests at such time.
Article II
THE COMMITMENTS AND BORROWINGS
2.01    The Loans.
(a)    (a) Term Loans. On the Closing Date, each Lender having a Term Loan Commitment as of the Closing Date made Existing Term Loans (as defined in the First Amendment) to the Borrower in the original principal amount of $950,000,000. On the First Amendment Effective Date, each Lender having a Term Loan Commitment as of the First Amendment Effective Date made (or was deemed to have made) Existing Term Loans (as defined in the Fourth Amendment) to the Borrower in the original principal amount of $647,625,000. Subject to the terms and conditions set forth in the Fourth Amendment, on the Fourth Amendment Effective Date, each 2018 Refinancing Term Lender (as defined in the Fourth Amendment) severally agrees to make (or will bemade (or was deemed to have made) a loan (a “Term Loan”) to the Borrower in Dollars, on the Fourth Amendment Effective Date in an aggregate principal amount not to exceed such Lender’s Applicable Percentage of the Term Loan Facility; provided, however, that after giving effect to any such Term Loan Borrowing, (i) the Total Outstandings of Term Loans shalldid not exceed the Term Loan Facility and (ii) the aggregate Outstanding Amount of the Term Loans of any Lender shalldid not exceed such Lender’s Term Loan Commitment. Each Term Loan Borrowing shall consist of Term Loans made simultaneously by the Term Lenders in accordance with their respective Applicable Percentage of the Term Loan

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Facility. Amounts borrowed under this Section 2.01 and repaid or prepaid may not be reborrowed. Term Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein. Term Loan Commitments in effect on the Fourth Amendment Effective Date and not drawn on the Fourth Amendment Effective Date shall expireexpired immediately after such date.
(b)    Incremental Revolving Borrowings. Subject to the terms and conditions set forth herein, each Incremental Revolving Lender severally agrees to make Incremental Revolving Loans to the Borrower in Dollars from time to time, on any Business Day during the Availability Period for the applicable Incremental Revolving Facility, in an aggregate principal amount not to exceed at any time outstanding the amount of such Lender’s Incremental Revolving Commitment; provided, however, that after giving effect to any Incremental Revolving Borrowing, (i) the Total Revolving Credit Outstandings shall not exceed the aggregate Incremental Revolving Commitments and (ii) the aggregate Outstanding Amount of the Incremental Revolving Loans of any Lender, plus such Incremental Revolving Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations shall not exceed such Incremental Revolving Lender’s Incremental Revolving Commitment. Within the limits of each Incremental Revolving Lender’s Incremental Revolving Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.01(b), prepay under Section 2.05, and reborrow under this Section 2.01(b). Incremental Revolving Loans may be Base Rate Loans or Eurocurrency Rate Loans. Each Incremental Revolving Lender may, at its option, make any Incremental Revolving Loan by causing any domestic or foreign branch or Affiliate of such Incremental Revolving Lender to make such Incremental Revolving Loan; provided that any exercise of such option shall not affect in any manner the obligation of the Borrower to repay such Incremental Revolving Loan in accordance with the terms of this Agreement.
2.02    Borrowings, Conversions and Continuations of the Loans.
(a)    Each Term Loan Borrowing, each Incremental Revolving Borrowing, each conversion of Term Loans or Incremental Revolving Loans from one Type to the other, and each continuation of Eurocurrency Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice must be received by the Administrative Agent not later than 12:00 p11:00 a.m., New York City time (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurocurrency Rate Loans and (ii) on the requested date of any Borrowing of Base Rate Loans; provided, however, that if the Borrower wishes to request Eurocurrency Rate Loans having an Interest Period other than one, two, three, or six months or, to the extent available to all Lenders making such Eurocurrency Rate Loans, twelve months or such shorter period in duration as provided in the definition of “Interest Period”, the applicable notice must be received by the Administrative Agent not later than 12:00 p11:00 a.m. New York City time four Business Days prior to the requested date of such Borrowing, conversion or continuation of Eurocurrency Rate Loans. Not later than 12:00 p.m. New York City time three Business Days before the requested date of such Borrowing, conversion or continuation of Eurocurrency Rate Loans, the Administrative Agent shall notify the Borrower (which notice may be by telephone) whether or not the applicable requested Interest Period referenced in the above proviso has been consented to by all such Lenders. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Borrowing Notice,

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appropriately completed and signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or continuation of Eurocurrency Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as provided in Section 2.03(c), each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Borrowing Notice (whether telephonic or written) shall specify (i) whether the Borrower is requesting a Term Loan Borrowing, an Incrementala Revolving Borrowing, a conversion of Term Loans or Incremental Revolving Loans from one Type to the other, or a continuation of Eurocurrency Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Term Loans or Incremental Revolving Loans are to be converted and (v) if applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type of Loan in a Borrowing Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation of Eurocurrency Rate Loans, then the applicable Term Loans or Incremental Revolving Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurocurrency Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any such Borrowing Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.
(b)    Following receipt of a Borrowing Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage under the applicable Facility of the applicable Term Loans or Incremental Revolving Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans as described in the preceding subsection. Each Lender shall make the amount of its Loan available to the Administrative Agent in Same Day Funds at the Administrative Agent’s Office not later than 2:00 p.m.12:00 noon, New York City time on the Business Day specified in the applicable Borrowing Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Borrowing, Section 4.01), the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of Administrative Agent with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower; provided, however, that if, on the date a Borrowing Notice with respect to an Incrementala Revolving Borrowing is given by the Borrower there are L/C Advances outstanding, then the proceeds of such an Incrementala Revolving Borrowing, first, shall be applied to the payment in full of any Unreimbursed Amounts in respect thereof, and second, shall be made available to the Borrower as provided above.
(c)    Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurocurrency Rate Loan. During the existence of an Event of Default, no Loans may be requested as, converted to or continued as Eurocurrency Rate Loans if the Required Lenders or the Administrative Agent so notify the Borrower.

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(d)    As soon as practicable after 10:00 a.m. (New York City time) on each Interest Rate Determination Date, Administrative Agent shall determine (which determination shall, absent manifest error, be final, conclusive and binding upon all parties) the interest rate that shall apply to the Eurocurrency Rate Loans for which an interest rate is then being determined for the applicable Interest Period and shall promptly give notice thereof (in writing or by telephone confirmed in writing) to the Borrower and each Lender. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in the Administrative Agent’s prime rate used in determining the Base Rate promptly following the public announcement of such change.
(e)    After giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there shall not be more than fifteen (15) Interest Periods in effect hereunder.
2.03    Letters of Credit.
(a)    The Letter of Credit Commitment.
(i)    Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Incremental Revolving Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the SecondSeventh Amendment Effective Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in one or more Alternative Currencies for the account of the Borrower or any Restricted Subsidiary, and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drawings under the Letters of Credit; and (B) the Incremental Revolving Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or any Restricted Subsidiary and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Credit Outstandings shall not exceed the aggregate Incremental Revolving Commitments and (y) the aggregate Outstanding Amount of the Incremental Revolving Loans of any Lender, plus such Incremental Revolving Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations shall not exceed such Incremental Revolving Lender’s Incremental Revolving Commitment. Each request by the Borrower or any Restricted Subsidiary for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. Notwithstanding anything herein to the contrary, (A) the Administrative Agent and Goldman Sachs Bank USA shall not be required to issue commercial Letters of Credit and (B) Credit Suisse AG and Deutsche Bank AG New York Branch shall not be required to issue commercial Letters of Credit or Bank Guarantees. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto and deemed L/C Obligations and shall be governed and subject to the terms and conditions hereof. At the election of the Borrower and the applicable L/C Issuer, and subject to the approval (not to be unreasonably withheld or delayed) of the Administrative Agent, any letters of credit issued

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by an L/C Issuer under the Existing Securitization Facility may be deemed to be a Letter of Credit for all purposes under this Agreement (and, for the avoidance of doubt, shall not be treated as outstanding under the Existing Securitization Facility upon such election and approval).
(ii)    No L/C Issuer shall issue any Letter of Credit if:
(A)    subject to Section 2.03(b)(iii) or an agreement by the Borrower to Cash Collateralize such Letter of Credit in the same manner as set forth in 2.03(g), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Revolving Lenders and the applicable L/C Issuer have approved such expiry date; provided that a Bank Guarantee may have an expiry date that occurs more than twelve months after the date of issuance or last extension (or may have no expiry date) if approved solely by the applicable L/C Issuer (but in any event subject to clause (B) below);
(B)    the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date (or if the requested Letter of Credit does not have an expiry date), unless (x) Cash Collateralized in the same manner as set forth in 2.03(g), or (y) all the Incremental Revolving Lenders and the applicable L/C Issuer have approved such expiry date; or
(C)    such Letter of Credit is to be denominated in a currency other than Dollars or an Alternative Currency.
(iii)    No L/C Issuer shall be under any obligation to issue any Letter of Credit if:
(A)    any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the SecondSeventh Amendment Effective Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the SecondSeventh Amendment Effective Date and which such L/C Issuer in good faith deems material to it;
(B)    the issuance of such Letter of Credit would violate one or more policies of such L/C Issuer;
(C)    such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder or any provisions for automatic extension of its expiry date;
(D)    a default of any Lender’s obligations to fund under Section 2.03(c) exists or any Lender is at such time a Defaulting Lender hereunder, unless the obligations of

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such Defaulting Lender have been fully reallocated to the non-Defaulting Lenders pursuant to Section 2.18(c) or such L/C Issuer has entered into arrangements satisfactory to it (such as through the posting of Cash Collateral) with the Borrower or such Lender to eliminate such L/C Issuer’s risk with respect to such Lender; or
(E)    after giving effect to such issuance, the aggregate face amount of Letters of Credit issued by such L/C Issuer would exceed its L/C Issuance Limit;
(iv)    The applicable L/C Issuer and the Borrower shall not amend any Letter of Credit if such L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v)    No L/C Issuer shall be under any obligation to amend any Letter of Credit if the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi)    Each L/C Issuer shall act on behalf of the Incremental Revolving Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and each L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C Issuers with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuers.
(b)    Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.
(i)    Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to an L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Borrower. Such Letter of Credit Application must be received by such L/C Issuer and the Administrative Agent not later than 11:00 a.m., New York City time, at least two Business Days (or such later date and time as the Administrative Agent and such L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the applicable L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount and currency thereof; (C) the expiry date thereof (if applicable, in the case of Bank Guarantees); (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as such L/C Issuer may reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the applicable L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as such L/C Issuer may reasonably

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require. Additionally, the Borrower shall furnish to the applicable L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as such L/C Issuer or the Administrative Agent may reasonably require.
(ii)    Promptly after receipt of any Letter of Credit Application, the applicable L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, such L/C Issuer will provide the Administrative Agent with a copy thereof. Unless such L/C Issuer has received written notice from any Incremental Revolving Lender, the Administrative Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article IV shall not then be satisfied, then, subject to the terms and conditions hereof, such L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower or any Restricted Subsidiary or enter into the applicable amendment, as the case may be, in each case in accordance with such L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Incremental Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from such L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Incremental Revolving Lender’s Applicable Percentage times the amount of such Letter of Credit. The Administrative Agent shall promptly notify each Incremental Revolving Lender of the amount of each Letter of Credit issuance and each amendment with respect to the amount of any Letter of Credit, provided that a failure to provide such notice shall not affect the obligations of each Incremental Revolving Lender to purchase participations in each Letter of Credit as provided in this Agreement. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary, the Borrower shall be obligated to reimburse the applicable Issuing Bank hereunder for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.
(iii)    If the Borrower so requests in any applicable Letter of Credit Application, an L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the applicable L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the applicable L/C Issuer, the Borrower shall not be required to make a specific request to the applicable L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Incremental Revolving Lenders shall be deemed to have authorized (but may not require) the applicable L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that the applicable L/C Issuer shall have no obligation to permit any such extension if (A) such L/C Issuer has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised

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form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a)), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is five Business Daysfifteen (15) days before the Non-Extension Notice Date from the Administrative Agent or the Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, and in each such case directing the applicable L/C Issuer not to permit such extension.
(iv)    If the Borrower so requests in any applicable Letter of Credit Application, an L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that permits the automatic reinstatement of all or a portion of the stated amount thereof after any drawing thereunder upon request to such L/C Issuer (each, an “Auto-Reinstatement Letter of Credit”). Each Auto-Reinstatement Letter of Credit shall permit the applicable L/C Issuer to decline to reinstate all or any portion of the stated amount thereof after a drawing thereunder by giving notice of such non-reinstatement within a specified number of days after such drawing (the “Non-Reinstatement Deadline”). Once an Auto-Reinstatement Letter of Credit has been issued, except as provided in the following sentence, the Incremental Revolving Lenders shall be deemed to have authorized (but may not require) the applicable L/C Issuer to reinstate all or a portion of the stated amount thereof in accordance with the provisions of such Letter of Credit. Notwithstanding the foregoing, the applicable L/C Issuer shall not permit such reinstatement if (A) such L/C Issuer has received a notice (which may be by telephone or in writing) on or before the day that is five Business Days before the Non-Reinstatement Deadline from the Administrative Agent or the Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied (treating such reinstatement as an L/C Credit Extension for purposes of this clause) and, in each case, directing the applicable L/C Issuer not to permit such reinstatement or (B) the Administrative Agent has not received a certificate from the Borrower on or before the day that is five Business Days before the Non-Reinstatement Deadline certifying to compliance with the proviso to the first sentence of Section 2.03(a) after giving effect to such reinstatement.
(v)    Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the applicable L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.
(c)    Drawings and Reimbursements; Funding of Participations.
(i)    Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the applicable L/C Issuer shall notify the Borrower and the Administrative Agent thereof. In the case of a Letter of Credit denominated in Dollars, the Borrower shall reimburse such L/C Issuer in Dollars. In the case of a Letter of Credit denominated in an Alternative Currency, the Borrower shall reimburse such L/C Issuer in such Alternative Currency, unless (A) such L/C Issuer (at its option) shall have specified in such notice that reimbursement in Dollars is preferred and the Borrower does not make payment in the applicable Alternative Currency on the Honor Date, in which case the Borrower shall reimburse such L/C Issuer in Dollars, or (B) otherwise, the Borrower shall have notified such L/C Issuer promptly following receipt of the notice of drawing that the Borrower will reimburse such L/C Issuer in Dollars. In the case of any such reimbursement in Dollars of a drawing under a Letter of Credit denominated in an Alternative Currency, such L/C Issuer shall notify the Borrower of the Dollar

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Equivalent of the amount of the drawing promptly following the determination thereof. The Borrower shall reimburse such L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing and in the applicable currency on the date on which the Borrower receives notice of any payment by such L/C Issuer under a Letter of Credit, if the Borrower receives notice by 12:00 p.m., New York City time for payment in Dollars or by the Applicable Time for payments in Alternative Currencies, or on the next Business Day if notice is not received by such time (each such date, an “Honor Date”). If the Borrower fails to so reimburse such L/C Issuer by the time set forth in the preceding sentence, the applicable L/C Issuer shall promptly notify the Administrative Agent of the Honor Date and the Unreimbursed Amount. The Administrative Agent shall promptly notify each Incremental Revolving Lender thereof and of the amount of such Incremental Revolving Lender’s Applicable Percentage thereof. Any notice given by an L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if promptly confirmed in writing; provided that the lack of such a prompt confirmation shall not affect the conclusiveness or binding effect of such notice.
(ii)    Each Incremental Revolving Lender shall upon any notice pursuant to Section 2.03(c)(i) make funds available to the Administrative Agent for the account of the applicable L/C Issuer, in Dollars, at the Administrative Agent’s Office in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m., New York City time, on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each Incremental Revolving Lender that so makes funds available shall be deemed to have made an Incrementala Revolving Loan constituting a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the applicable L/C Issuer in Dollars.
(iii)    With respect to any Unreimbursed Amount that is not repaid or fully refinanced by an Incrementala Revolving Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the applicable L/C Issuer an L/C Borrowing in Dollars in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at (A) the rate applicable to Base Rate Loans from the Honor Date to the date reimbursement is required pursuant to Section 2.03(c)(i) and (B) thereafter, the Default Rate. Each Incremental Revolving Lender’s payment to the Administrative Agent for the account of the applicable L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03.
(iv)    Until each Incremental Revolving Lender funds its L/C Advance pursuant to this Section 2.03(c) to reimburse the applicable L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Incremental Revolving Lender’s Applicable Percentage of such amount shall be solely for the account of such L/C Issuer.
(v)    Each Incremental Revolving Lender’s obligation to make L/C Advances to reimburse the L/C Issuers for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such

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Incremental Revolving Lender may have against any L/C Issuer, the Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Incremental Revolving Lender’s obligation to make Incremental Revolving Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 4.02 (other than delivery by the Borrower of a Borrowing Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the applicable L/C Issuer for the amount of any payment made by the such L/C Issuer under any Letter of Credit, together with interest as provided herein.
(vi)    If any Incremental Revolving Lender fails to make available to the Administrative Agent for the account of the applicable L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii), such L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to such L/C Issuer at a rate per annum equal to the applicable OvernightNYFRB Rate from time to time in effect. A certificate of the applicable L/C Issuer submitted to any Incremental Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this Section 2.03(c)(vi) shall be conclusive, absent manifest error.
(d)    Repayment of Participations.
(i)    At any time after an L/C Issuer has made a payment under any Letter of Credit and has received from any Incremental Revolving Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c), if the Administrative Agent receives for the account of such L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Applicable Percentage thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s L/C Advance was outstanding) in Dollars and in the same funds as those received by the Administrative Agent.
(ii)    If any payment received by the Administrative Agent for the account of an L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by such L/C Issuer in its discretion), each Incremental Revolving Lender shall pay to the Administrative Agent for the account of such L/C Issuer its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the applicable OvernightNYFRB Rate from time to time in effect. The obligations of the Lenders under this clause shall survive Payment in Full and the termination of this Agreement.
(e)    Obligations Absolute. The obligation of the Borrower to reimburse each L/C Issuer for each drawing under each Letter of Credit and to repay each Unreimbursed Amount shall be absolute, unconditional and irrevocable under all circumstances, including the following:

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(i)    any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Loan Document;
(ii)    the existence of any claim, counterclaim, setoff or defense to payment that the Borrower or any Restricted Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), any L/C Issuer or any Incremental Revolving Lender, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
(iii)    any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit, except to the extent caused by the applicable L/C Issuer’s gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction;
(iv)    any payment by the applicable L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit, so long as such L/C Issuer shall have determined in the absence of gross negligence or willful misconduct, in good faith and in accordance with the standard of care specified in the Uniform Commercial Code of the State of New Yorkas determined by a final, non-appealable judgment of a court of competent jurisdiction, that the documents (including each draft) delivered under such Letter of Credit in connection with such presentment appear on their face to be in conformity with such Letter of Credit;
(v)    any adverse change in the relevant exchange rates or in the availability of the relevant Alternative Currency to the Borrower or any Restricted Subsidiary or in the relevant currency markets generally; or
(vi)    any other action taken or omitted to be taken by an L/C Issuer under or in connection with any Letter of Credit or the related drafts or documents, whether or not similar to any of the foregoing, if done in the absence of gross negligence or willful misconduct, in good faith and in accordance with the standards of care specified in the Uniform Commercial Code of the State of New Yorkas determined by a final, non-appealable judgment of a court of competent jurisdiction.
The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s instructions or other irregularity, the Borrower will promptly notify the applicable L/C Issuer. The Borrower shall be conclusively deemed to have waived any such claim against the applicable L/C Issuer and its correspondents unless such notice is given as aforesaid.
(f)    Role of L/C Issuer. Each Incremental Revolving Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, no L/C Issuer shall have any responsibility to obtain any document (other than any documents expressly required by the Letter of Credit) or to

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ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuers, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuers shall be liable to any Incremental Revolving Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Incremental Revolving Lenders or the Required Revolving Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. Notwithstanding anything to the contrary herein, the Borrower may have a claim against an L/C Issuer, and an L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused by such L/C Issuer’s willful misconduct or gross negligence or such L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary or transferee of documents strictly complying with the terms and conditions of a Letter of Credit, as determined by a final, non-appealable judgment of a court of competent jurisdiction. In furtherance and not in limitation of the foregoing, an L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and an L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.
(g)    Cash Collateral. If any L/C Obligation (x) has a stated maturity date or an expiration date that extends beyond the Incremental Revolving Facility Maturity Date or has no stated expiry or maturity date, or (y) provides for automatic extensions of the stated maturity date or the expiration date thereof, in each case, beyond the Incremental Revolving Facility Maturity Date, then the Borrower shall Cash Collateralize (i) any portion of such Letter of Credit described in clause (x) above that remains outstanding 15 days prior to the Incremental Revolving Facility Maturity Date (or such shorter time as the Administrative Agent and any applicable L/C Issuer shall agree) and (ii) any portion of such Letter of Credit described in clause (y) above that remains outstanding 15 days prior to the date on which the applicable L/C Issuer must deliver notice electing not to extend such Letter of Credit (or such shorter time as the Administrative Agent and any applicable L/C Issuer shall agree).
(h)    Applicability of ISP and UCP. Unless otherwise expressly agreed by the applicable L/C Issuer and the Borrower when a Letter of Credit is issued, with respect to Letters of Credit other than Bank Guarantees, the rules of the ISP shall apply to each standby Letter of Credit and the rules of the UCP shall apply to each commercial Letter of Credit.
(i)    Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the account of each Incremental Revolving Lender in accordance with its Applicable Percentage for the Incremental Revolving Facility a Letter of Credit fee (the “Letter of Credit Fee”) for each

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Letter of Credit issued on behalf of the Borrower equal to the Applicable Rate for Eurocurrency Rate Loans times the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit. For purposes of computing the daily amount available to be drawn under any Letter of Credit issued on behalf of the Borrower, the amount of such Letter of Credit shall be determined in accordance with Section 1.08. The Letter of Credit Fees shall be (x) computed on a quarterly basis in arrears and (y) due and payable on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. Notwithstanding anything to the contrary contained herein, all Letter of Credit Fees shall accrue at the Default Rate (i) automatically if such Letter of Credit Fee is not paid when due, whether at stated maturity, by acceleration or otherwise and (ii) while any other Event of Default exists upon the request of the Required Revolving Lenders.
(j)    Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The Borrower shall pay directly to the applicable L/C Issuer for its own account, in Dollars, a fronting fee with respect to each Letter of Credit issued by such L/C Issuer at the rate of 0.125% per annum on the face amount of each such Letter of Credit, computed on the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears (any such fronting fee, a “Fronting Fee”). Fronting Fees shall be due and payable on the date that is ten Business Days after the last day of each March, June, September and December in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand; provided that, notwithstanding the foregoing, except in the event that there exists any Event of Default under Section 8.01(f) when such Fronting Fee is due, the Fronting Fee shall be due but not payable until five days following receipt by Borrower of an invoice from the applicable L/C Issuer setting forth the amount payable. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.08. In addition, the Borrower shall pay directly to the applicable L/C Issuer for its own account, in Dollars, the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of such L/C Issuer relating to letters of credit or bank guarantees, as applicable, as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.
(k)    Conflict with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.
(l)    Letters of Credit Issued for Restricted Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Restricted Subsidiary, the Borrower shall be obligated to reimburse the applicable L/C Issuer hereunder for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of Credit for the account of Restricted Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s business derives substantial benefits from the businesses of such Restricted Subsidiaries.
(m)    Additional L/C Issuer. Any Person permitted to become an L/C Issuer pursuant to the definition of L/C Issuer may become an L/C Issuer under this Agreement with the obligations,

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rights, powers and privileges of an L/C Issuer hereunder by executing a joinder, in a form reasonably satisfactory to (and acknowledged and accepted by) the Administrative Agent, indicating such Lender’s L/C Issuance Limit and, upon the execution and delivery of any such joinder, such Lender shall be an L/C Issuer for all purposes hereof.
(n)     Reallocation. If at any time prior to the termination in full of the Revolving Facility, a portion of the Revolving Commitments of any Lender expire as a result of the occurrence of the Revolving Facility Maturity Date with respect thereto, then, the participation obligations with respect to existing Letters of Credit shall be fully reallocated to the remaining Revolving Lenders (subject to the limitations set forth in Section 2.03(a)(i) as if such Letters of Credit were being issued at such time) or such L/C Issuer shall enter into arrangements satisfactory to it (such as through the posting of Cash Collateral) with the Borrower to eliminate such L/C Issuer’s risk with respect to such expiring Revolving Commitments.
2.04    [Reserved].
2.05    Prepayments and Commitment Reductions.
(a)    Voluntary Prepayments. The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Loans in whole or in part, subject to Section 2.05(i), without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m., New York City time (or such other later time which is acceptable to the Administrative Agent), (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans, and (B) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, the entire amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s ratable portion of such prepayment (based on such Lender’s Applicable Percentage in respect of the relevant Facility). If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; provided that any such notice may be contingent upon the consummation of a refinancing and such notice may otherwise be extended or revoked, in each case, with the requirements of Section 3.05 to apply to any failure of the contingency to occur and any such extension or revocation. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05. Each prepayment of the outstanding Loans pursuant to this Section 2.05(a) shall be applied to the Type(s) of Loan(s) in the manner as the Borrower shall direct, and each prepayment of Loans shall be paid to the Lenders in accordance with their respective Applicable Percentages in respect of each of the relevant Facilities; provided, in the event the Borrower fails to specify the Loans to which any such prepayments shall be applied, such prepayments shall be applied, first, to repay outstanding Incremental Revolving Loans (if any) to the full extent thereof (without a corresponding reduction in the Incremental Revolving Commitments with respect

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thereto) and second, to prepay the Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) and further applied to reduce the scheduled remaining installments of principal of the Term Loans in direct order of maturity.
(b)    [Reserved].
(c)    If the Administrative Agent notifies the Borrower at any time that the Dollar Equivalent of the Total Revolving Credit Outstandings at such time exceeds the Incremental Revolving Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrower shall prepay Incremental Revolving Loans and/or shall Cash Collateralize the L/C Obligations in an aggregate amount sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Incremental Revolving Commitments then in effect; provided, however, that, subject to the provisions of Section 2.03(g), the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(c) unless, after the prepayment of the Incremental Revolving Loans, the Total Revolving Credit Outstandings exceed the Incremental Revolving Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the incremental effects of further exchange rate fluctuations if the Dollar Equivalent of the Total Revolving Credit Outstandings at such time less the amount of Cash Collateral held by the Administrative Agent for L/C Obligations exceeds the Incremental Revolving Commitments then in effect.
(d)    [Reserved].
(e)    Asset Sales. No later than ten Business Days following the consummation of any Asset Sale by the Borrower or a Restricted Subsidiary pursuant to Sections 7.05(c), 7.05(k), 7.05(l) and 7.05(q) that results in the amount of Net Proceeds (as of the date of such receipt) exceeding $10,000,000 (such excess amount, the “Excess Proceeds”), the Borrower shall make (or cause to be made) a prepayment of the Loans as specified in Section 2.05(k) below in an amount equal to the lesser of (x) 100% of such Excess Proceeds and (y) the aggregate principal amount of the Loans then outstanding (the “Asset Sale Sweep Provision”), if any, in each case subject to the following:
(i)    If prior to the date of any such required prepayment, the Borrower notifies the Administrative Agent in writing of the Borrower’s and/or its Restricted Subsidiary’s intention to reinvest the Excess Proceeds of any Asset Sale in assets that are, in the reasonable business judgment of the Borrower, useful in the business of the Borrower or some or all of its Restricted Subsidiaries (including by way of any Permitted Acquisition) and certifies in such notice that no Event of Default then exists, then the Borrower shall not be required to make a prepayment to the extent (x) the Excess Proceeds are so reinvested within 365 days following receipt thereof by the Borrower and/or such Restricted Subsidiary, or (y) if the Borrower and/or such Restricted Subsidiary, as applicable, has committed in writing to so reinvest such Excess Proceeds during such 365-day period, such Excess Proceeds are so reinvested within 180 days after the expiration of such 365-day period; provided that, to the extent such Excess Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the outstanding Loans as specified in Section 2.05(k) below after the expiration of such period in an amount equal to the amount required by the Asset Sale Sweep Provision where, subject to Section 2.05(e)(v), the amount of Excess Proceeds for such purposes shall be the amount of Excess

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Proceeds not reinvested as set forth above; provided, further that, if such Asset Sale includes a Disposition of any Collateral, the assets in which the portion of Excess Proceeds derived from such Collateral are so reinvested as set forth above shall be reinvested in assets of one or more Loan Parties and the applicable Loan Party shall comply with Section 6.16 with respect to such assets as if such assets were acquired on the date of such reinvestment.
(ii)    Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05.
(iii)    [Reserved].
(iv)    Notwithstanding anything to the contrary herein, with respect to the Metropolitan Collieries Disposition, the Borrower’s obligation to repay the Loans pursuant to this Section 2.05(e) shall be limited to the lesser of (x) the Excess Proceeds as a result of the Metropolitan Collieries Disposition and (y) the amount by which the amount of Unrestricted Cash of the Borrower and its Restricted Subsidiaries immediately after giving effect to such Metropolitan Collieries Disposition and the receipt of the proceeds of such Disposition exceeds $800,000,000.[Reserved].
(v)    The amount of repayments required to be made pursuant to this Section 2.05(e) shall be reduced by an amount equal to the sum of the amount of any voluntary repayments of the Loans made with such Net Proceeds from the relevant Asset Sale.
(f)    Issuance of Debt. On the first Business Day following receipt by Borrower or any of its Restricted Subsidiaries of any cash proceeds from the incurrence of any Indebtedness of Borrower or any of its Restricted Subsidiaries (other than with respect to Indebtedness permitted to be incurred pursuant to Section 7.03 but including Permitted Refinancing Indebtedness in respect of the Term Loans), Borrower shall prepay the Loans as specified in Section 2.05(k) below in an aggregate amount equal to 100% of such proceeds, net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith, including reasonable legal fees and expenses.
(g)    Excess Cash Flow. In the event that there shall be Excess Cash Flow for any fiscal year (commencing with the fiscal year ending December 31, 20182019), Borrower shall, no later than one hundred days after the end of such fiscal year, prepay the Loans in an aggregate amount equal to (i) 75% of such Excess Cash Flow minus (ii) voluntary repayments of the Term Loans made with Internally Generated Cash (excluding, for the avoidance of doubt, (x) repurchases of Term Loans pursuant to Sections 2.19 and 2.20 and (y) repayments of Term Loans made with the Cash proceeds of any Permitted Refinancing Indebtedness); provided, that if, as of the last day of the most recently ended fiscal year (commencing with the payment due one hundred days after December 31, 20182019), the Total Leverage Ratio (determined for any such period by reference to the Compliance Certificate delivered pursuant to Section 6.02(b) calculating the Total Leverage Ratio as of the last day of such fiscal year) shall be (1) less than or equal to 2.00:1.00 and greater than 1.50:1.00, Borrower shall only be required to make the prepayments otherwise required hereby in an amount equal to (i) 50% of such Excess Cash Flow minus (ii) voluntary repayments of the Term Loans made with Internally Generated Cash (excluding, for the avoidance of doubt,

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(x) repurchases of Term Loans pursuant to Sections 2.19 and 2.20 and (y) repayments of Term Loans made with the Cash proceeds of any Permitted Refinancing Indebtedness); (2) less than or equal to 1.50:1.00 and greater than 1.00:1.00, Borrower shall only be required to make the prepayments otherwise required hereby in an amount equal to (i) 25% of such Excess Cash Flow minus (ii) voluntary repayments of the Term Loans made with Internally Generated Cash (excluding, for the avoidance of doubt, (x) repurchases of Term Loans pursuant to Sections 2.19 and 2.20 and (y) repayments of Term Loans made with the Cash proceeds of any Permitted Refinancing Indebtedness); and (3) less than or equal to 1.00:1.00, Borrower shall not be required to make the prepayments otherwise required hereby.
(h)    Insurance/Condemnation Proceeds. No later than ten Business Days following the date of receipt by Borrower or any of its Restricted Subsidiaries, or Administrative Agent or Collateral Trustee as loss payee, of any Net Insurance/Condemnation Proceeds, Borrower shall prepay the Loans as specified in Section 2.05(k) below in an aggregate amount equal to such Net Insurance/Condemnation Proceeds; provided, if prior to the date of any such required prepayment, the Borrower notifies the Administrative Agent in writing of the Borrower’s and/or its Restricted Subsidiary’s intention to reinvest the Net Insurance/Condemnation Proceeds in assets that are, in the reasonable business judgment of the Borrower, useful in the business of the Borrower or some or all of its Restricted Subsidiaries (including by way of any Permitted Acquisition) (or used to replace damaged or destroyed assets) and certifies in such notice that no Event of Default then exists, then the Borrower shall not be required to make a prepayment to the extent (x) the Net Insurance/Condemnation Proceeds are so reinvested within 365 days following receipt thereof by the Borrower and/or such Restricted Subsidiary, or (y) if the Borrower and/or such Restricted Subsidiary, as applicable, has committed in writing to so reinvest such Net Insurance/ Condemnation Proceeds during such 365-day period, such Net Insurance/Condemnation Proceeds are so reinvested within 180 days after the expiration of such 365-day period; provided that, to the extent such Net Insurance/Condemnation Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the outstanding Loans as specified in Section 2.05(k) below after the expiration of such period in an amount equal to such Net Insurance/Condemnation Proceeds less any amount so reinvested; provided, further that, if such casualty or taking includes any Collateral, the assets in which the portion of Net Insurance/Condemnation Proceeds derived from such Collateral are so reinvested as set forth above shall be reinvested in assets of one or more Loan Parties and the applicable Loan Party shall comply with Section 6.16 with respect to such assets as if such assets were acquired on the date of such reinvestment.
(i) Call Protection. In the event all or any portion of the Term Loans incurred on the Fourth Amendment Effective Date is repaid (or repriced or effectively refinanced through any amendment, including, without limitation, through a Refinancing Facility) for any reason (other than voluntary prepayments with Internally Generated Cash, mandatory prepayments required pursuant to Sections 2.05(g) and 2.05(h) and repayments made pursuant to Section 2.07) prior to the six-month anniversary of the Fourth Amendment Effective Date, such repayments, repricing or effective refinancings will be made at 101.0% of the principal amount repaid, repriced or effectively refinanced if such repayment, repricing or refinancing occurs on or prior to the six-month anniversary of the Fourth Amendment Effective Date.

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(i)    [Reserved].
(j)    Repatriation. Notwithstanding the foregoing, if the Borrower reasonably determines in good faith that any amounts attributable to Foreign Subsidiaries that are required to be prepaid pursuant to Sections 2.05(e) and 2.05(h) would result in material adverse tax consequences or violate any applicable local law in respect of upstreaming proceeds (including financial assistance and corporate benefit restrictions and statutory duties of the relevant directors), in each case as set forth in a certificate delivered by a Responsible Officer of the Borrower to the Administrative Agent, then such Borrower and its Restricted Subsidiaries shall not be required to prepay such amounts as required under Sections 2.05(e) and 2.05(h) the repatriation of which would result in such tax consequence or violation until such material tax consequences or local law violation no longer exist; provided that, for a period of one year following the date on which such payment was originally required, the Borrower and its Restricted Subsidiaries shall take commercially reasonable actions to permit repatriation of the proceeds subject to such prepayments in order to effect such prepayments without violating local law or incurring such material adverse tax consequences.
(k)    Application of Mandatory Prepayments. Each prepayment of the outstanding Loans pursuant to Sections 2.05(e) through 2.05(h) above shall be applied, first, pro rata to the remaining scheduled installment payments of the Term Loans in direct order of maturity, second, to repay the Incremental Revolving Loans (without a corresponding reduction in the Incremental Revolving Commitments with respect thereto) and third, to Cash Collateralize Letters of Credit issued hereunder, in form and substance reasonably satisfactory to the applicable L/C Issuer. Each prepayment of Loans shall be paid to the Lenders in accordance with their respective Applicable Percentages.
(l)    Additional Limitations. Notwithstanding anything to the contrary herein, the Borrower may apply amounts otherwise required to make prepayments pursuant to Sections 2.05(e), (g) and (h) to repay (x) with respect to Sections 2.05(e) and (h), any Indebtedness that was secured by any assets not constituting Collateral sold in such Asset Sale or the loss of which resulted in Net Insurance/Condemnation Proceeds, as applicable, to the extent such repayment is required by such Indebtedness as a result of such Asset Sale or loss and (y) a ratable portion of Indebtedness permitted to be incurred pursuant to Section 7.03 and secured by liens on a pari passu basis pursuant to Section 7.01 (including, for the avoidance of doubt, the Priority Lien Notes Indebtedness, Incremental Debt and Permitted Refinancing Indebtedness of the foregoing), in the case of this clause (y), in respect of which a prepayment (or offer of prepayment) is required to be made with respect to such pari passu Indebtedness with such Excess Proceeds, Net Insurance/Condemnation Proceeds or Excess Cash Flow (determined on the basis of the aggregate outstanding principal amount of the Loans and such other Indebtedness outstanding at such time).
(m)    ABL Facility. Notwithstanding anything to the contrary in Sections 2.05(e) and 2.05(h), if any Indebtedness under any ABL Facility is outstanding, to the extent a prepayment or cash collateralization of letters of credit is required under such ABL Facility due to any Net Proceeds or Net Insurance/Condemnation Proceeds constituting the proceeds of ABL Priority Collateral, no prepayment shall be required under Sections 2.05(e) and 2.05(h) to the extent of such required payment under such ABL Facility.[Reserved].

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(n)    Waivable Mandatory Prepayment. Anything contained herein to the contrary notwithstanding, in the event the Borrower is required to make any mandatory prepayment (a “Waivable Mandatory Prepayment”), not less than five Business Days prior to the date (the “Required Prepayment Date”) on which the Borrower is required to make such Waivable Mandatory Prepayment, the Borrower shall notify the Administrative Agent of the amount of such prepayment, and the Administrative Agent will promptly thereafter notify each Lender of the amount of such Lender’s Applicable Percentage of such Waivable Mandatory Prepayment and such Lender’s option to refuse such amount. Each such Lender may exercise such option by giving written notice to the Borrower and the Administrative Agent of its election to do so on or before the third Business Day prior to the Required Prepayment Date (it being understood that any Lender which does not notify the Borrower and the Administrative Agent of its election to exercise such option on or before the third Business Day prior to the Required Prepayment Date shall be deemed to have elected, as of such date, not to exercise such option). On the Required Prepayment Date, (i) the Borrower shall pay to the Administrative Agent an amount equal to that portion of the Waivable Mandatory Prepayment that is payable to those Lenders that have elected not to exercise such option, to prepay the Loans of such Lenders (which prepayment shall be applied in accordance with the terms of this Section 2.05), and (ii) the portion of the Waivable Mandatory Prepayment otherwise payable to Lenders that have elected to exercise such option (“Declined Proceeds”) may be retained by the Borrower to be used for any purpose not prohibited hereunder.
2.06    Optional Termination or Reduction of Revolving Credit Commitments.
(a)    Optional. The Borrower may, upon notice to the Administrative Agent, terminate the Incremental Revolving Commitments, or from time to time permanently reduce the Incremental Revolving Commitments in whole or in part; provided that (i) any such notice shall be received by the Administrative Agent not later than 11:00 a.m., New York City time, three Business Days prior to the date of termination or reduction, (ii) any such partial reduction with respect to the Incremental Revolving Commitments shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof, and (iii) the Borrower shall not terminate or reduce the Incremental Revolving Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the total Outstanding Amount under the Incremental Revolving Facility would exceed the Incremental Revolving Commitments under the Incremental Revolving Facility. The Administrative Agent will promptly notify the Incremental Revolving Lenders of any such notice of the foregoing, and any such notice may be contingent upon the consummation of a refinancing and such notice may otherwise be extended or revoked.
(b)    Application of Commitment Reductions; Payment of Fees. Upon any reduction of the Incremental Revolving Commitments, the Incremental Revolving Commitment of each Incremental Revolving Lender shall be reduced by such Incremental Revolving Lender’s Applicable Percentage in respect of the Incremental Revolving FacilitiesFacility of such reduction amount. All fees and other amounts under this Agreement in respect of the Incremental Revolving FacilitiesFacility accrued until the effective date of any termination of the Incremental Revolving FacilitiesFacility shall be paid on the effective date of such termination.
2.07    Repayment of Loans.

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(a)    The Borrower shall repay to the Term Lenders on each date set forth below (or, if any such date is not a Business Day, the immediately preceding Business Day) the principal amount of Term Loans set forth opposite such date below:
Date
Amount
June 30, 2018
$1,000,000.00
September 30, 2018
$1,000,000.00
December 31, 2018
$1,000,000.00
March 31, 2019
$1,000,000.00
June 30, 2019
$1,000,000.00
September 30, 2019
$1,000,000.00
December 31, 2019
$1,000,000.00
March 31, 2020
$1,000,000.00
June 30, 2020
$1,000,000.00
September 30, 2020
$1,000,000.00
December 31, 2020
$1,000,000.00
March 31, 2021
$1,000,000.00
June 30, 2021
$1,000,000.00
September 30, 2021
$1,000,000.00
December 31, 2021
$1,000,000.00
March 31, 2022
$1,000,000.00
June 30, 2022
$1,000,000.00
September 30, 2022
$1,000,000.00
December 31, 2022
$1,000,000.00
March 31, 2023
$1,000,000.00
June 30, 2023
$1,000,000.00
September 30, 2023
$1,000,000.00
December 31, 2023
$1,000,000.00
March 31, 2024
$1,000,000.00
June 30, 2024
$1,000,000.00
September 30, 2024
$1,000,000.00
December 31, 2024
$1,000,000.00
Maturity Date
$373,000,000.00

(b)    provided, however, that the final principal repayment installment of the Term Loans shall be repaid on the Maturity Date and in any event shall be in an amount equal to the aggregate principal amount of all Term Loans outstanding on such date.

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(c)    (b) The Borrower shall repay to the Incremental Revolving Lenders on the Incrementalapplicable Revolving Facility Maturity Date the aggregate principal amount of all Incremental Revolving Loans outstanding on such date.
2.08    Interest.
(a)    Subject to the provisions of subsection (b) below, (i) each Eurocurrency Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurocurrency Rate for such Interest Period plus the Applicable Rate; and (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate.
(b)    If any amount of principal or interest of any Loan (or any other Obligations) is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.
(c)    Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.
2.09    Fees. In addition to certain fees described in subsections (i) and (j) of Section 2.03:
(a)    Commitment Fee. The Borrower shall pay to the Administrative Agent for the account of each Incremental Revolving Lender in accordance with its Applicable Percentage in respect of the Incremental Revolving Facility, a commitment fee in Dollars equal to 0.50%the Commitment Fee Rate times the actual daily amount by which the aggregate Incremental Revolving Commitments of all Incremental Revolving Lenders exceed the sum of (i) the Outstanding Amount of Incremental Revolving Loans and (ii) the Outstanding Amount of L/C Obligations of the Borrower, determined on the last day of the immediately preceding fiscal quarter. The commitment fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the SecondSeventh Amendment Effective Date (or, in the case of any incremental Revolving Facility other than the 2017 Incremental Revolving Facility, the applicable Incremental Facility Effective Date), and on the Incremental Revolving Facility Maturity Date.
(b)    The Borrower shall pay to the Arrangers and the Agents for their own respective accounts, in Dollars, fees in the amounts and at the times specified in each of the Fee Letters. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
(c) If the Closing Date has not occurred on or prior to the date that is 31 days following the final allocation of the Term Loan Facility (such date, the “Start Date”), the

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Borrower agrees to pay (or cause to be paid) to the Arrangers (for the benefit of each Lender that has been allocated a portion of the Term Loan Facility) a fee (the “Ticking Fee”) in an amount equal to the sum of (a) for the period, if any, commencing on the Start Date and continuing through the earliest of (x) the date that is 61 days following the final allocation of the Term Loan Facility (such date, the “Step-Up Date”), (y) the Closing Date and (z) May 1, 2017 (or if the Borrower has elected to extend the date set forth in Section 4.01(n), such date as so extended but in any event no later than August 1, 2017) (the “Termination Date”), an amount equal to the product of (i) the aggregate principal amount of the commitments in respect of the Term Loan Facility that were so allocated multiplied by (ii) a per annum rate equal to 50.0% of the interest rate margin applicable to Eurocurrency Rate Loans, plus (b) for the period, if any, after the Step-Up Date through and including the earlier of (x) the date that is 121 days following allocation of the Term Loan Facility (the “Second Step-Up Date”), (y) the Closing Date and (z) the Termination Date, an amount equal to the product of (i) the aggregate principal amount of the commitments in respect of the Term Loan Facility that were so allocated multiplied by (ii) 100% of the interest rate margin applicable to Eurocurrency Rate Loans, plus (c) for the period, if any, after the Second Step-Up Date through and including the earlier of (x) the Closing Date and (y) the Termination Date, an amount equal to the product of (i) the aggregate principal amount of the commitments in respect of the Term Loan Facility that were so allocated multiplied by (ii) 100% of the interest rate (including the interest rate margin) applicable to Eurocurrency Rate Loans (including the LIBOR “floor”). The Ticking Fee shall be allocated among the Lenders that have been allocated a portion of the Term Loan Facility pro rata in accordance with their respective shares of the then-outstanding aggregate commitments in respect of the Term Loan Facility. The Ticking Fee shall be payable on the earlier of (a) the Closing Date and (b) the Termination Date.
2.10    Computation of Interest and Fees. All computations of interest for Base Rate Loans, where the rate of interest is calculated on the basis of the prime rate, and of Fronting Fees shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed. Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
2.11    Evidence of Debt. The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the

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absence of manifest error. Upon the request of any Lender to the Borrower made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loans to the Borrower in addition to such accounts or records. Each Lender may attach schedules to a Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.
In addition to the accounts and records referred to in subsection (a), each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit. In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.
2.12    Payments Generally; Administrative Agent’s Clawback.
(a)    General. All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars and in Same Day Funds not later than 2:00 p.m., New York City time, on the date specified herein. If, for any reason, the Borrower is prohibited by any Law from making any required payment hereunder in an Alternative Currency, the Borrower shall make such payment in Dollars in the Dollar Equivalent of the Alternative Currency payment amount. The Administrative Agent will promptly distribute to each Lender its Applicable Percentage of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 3:00 p.m., New York City time shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
(b)    (i)    Funding by Lenders; Presumption by Administrative Agent. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Eurocurrency Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 2:00 p.m., New York City time, on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in Same Day Funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the OvernightNYFRB Rate, and (B) in the case of a

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payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii)    Payments by Borrower; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or the L/C Issuer, in Same Day Funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the OvernightNYFRB Rate.
A notice of the Administrative Agent to any Lender or Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.
(c)    Failure to Satisfy Conditions Precedent. If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender to the Borrower as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall promptly return such funds (in like funds as received from such Lender) to such Lender, without interest.
(d)    Obligations of Lenders Several. The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to fund its participation or to make its payment under Section 10.04(c).
(e)    Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
2.13    Pro Rata; Sharing of Payments by Lenders. Except as otherwise expressly provided in this Agreement, each payment (including each prepayment) by the Borrower on

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account of principal of and interest on any Term Loans or Incremental Revolving Loans shall be allocated by the Administrative Agent pro rata according to the respective outstanding principal amounts of the Loans of such Class then held by the respective Lenders of such Class. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Loans made by it (or the participation in L/C Obligations held by it) resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact and (b) purchase (for cash at face value) participations in the applicable Loans (and subparticipations in L/C Obligations) of the other Lenders of such Class, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans of the applicable Class and other amounts owing them, provided that:
(a)    if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(b)    the provisions of this Section shall not be construed to apply to (i) any payment made by the Borrower pursuant to and in accordance with the express terms of 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 Term Loans or Incremental Revolving Loans (or subparticipations in L/C Obligations) to any assignee or participant.
The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
2.14    [Reserved].
2.15    Incremental Debt.
(a)    Request for Incremental Facility. Upon notice (an “Incremental Facility Request”) to and approval (not to be unreasonably withheld or delayed) of the Administrative Agent (who shall promptly notify the existing Lenders), the Borrower may, without the consent of any Lender, request to add an incremental revolving credit facility or increase the principal amount of anythe existing incremental revolving facility (each anRevolving Facility (such increase, aIncremental Revolving Facility”) and/or one or more new incremental term loan facilities (each an “Incremental Term Facility”; each Incremental Revolving Facility and Incremental Term Facility, an “Incremental Facility”) in an aggregate principal amount, which when added to the aggregate principal amount of the other Incremental Debt outstanding does not exceed the Incremental Debt Cap as of the effective date of the Incremental Facility; provided that any such request for an Incremental Facility shall be in a minimum amount equal to the lesser of (x) $25,000,000 and (y) the entire amount that remains available for request under this Section 2.15.

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(b)    Incremental Facility Request. Each Incremental Facility Request from the Borrower shall set forth (i) the requested principal amount of the Incremental Facility, (ii) the proposed terms of the Incremental Facility (including its interest rate and, if an Incremental Term Facility is being requested, amortization and any prepayment premiums) and (iii) whether an Incremental Revolving Facility or Incremental Term Facility is being requested. An Incremental Facility may be provided by (A) an existing Lender (but no Lender shall be obligated to provide a commitment in respect of an Incremental Facility, nor shall the Borrower have any obligation to approach any existing Lenders to provide a commitment in respect of an Incremental Facility) or (B) any other Incremental Lender so long as any such Person is approved by the Administrative Agent and any other Person who would have consent rights pursuant to Section 10.06(b) if such Incremental Lender was becoming an Incrementala Revolving Lender or a Term Lender, as applicable. Subject to any such consents being received and if not already a party hereto, any such Incremental Lender may become a party to this Agreement by entering into an Incremental Amendment or other joinder agreement in form and substance reasonably satisfactory to the Administrative Agent.
(c)    Closing Date and Allocations. In connection with any Incremental Facility, the Administrative Agent and the Borrower shall determine the effective date (the “Incremental Facility Effective Date”). The Administrative Agent shall promptly notify the Borrower and the Lenders of the principal amount of the Incremental Facility and the Incremental Facility Effective Date.
(d)    Conditions to Effectiveness of Incremental Facility. The effectiveness of each Incremental Facility shall be subject to the following conditions:
(i)    as of the Incremental Facility Effective Date, (A) the representations and warranties contained in Article V (or, in the case of any Incremental Facility being requested in connection with a Permitted Acquisition, the Specified Representations and Acquisition Agreement Representations in the Acquisition Agreement for such Permitted Acquisition) are true and correct in all material respects on and as of the Incremental Facility Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and (ii) (A) if such Incremental Facility is being requested in connection with a Permitted Acquisition, no Event of Default under Sections 8.01(a), (f), or (g) has occurred or is continuing or would immediately result therefrom, unless such conditions would not be permitted by applicable Law (e.g., in an Australian acquisition context), in which case the satisfaction of such conditions shall not be required, and (B) otherwise, no Default or Event of Default has occurred or is continuing or would immediately result therefrom;
(ii)    such Incremental Facility shall have the same guarantees as, and be secured on a pari passu basis with, the Secured Obligations; provided that, if agreed by the Borrower and the relevant Incremental Lenders, the Incremental Facility may be subject to lesser guarantees or be unsecured or less secured, or the Liens securing the Incremental Facility may rank junior to the Liens securing the Term Loan Facility and the 2017 Incremental Revolving Facility;
(iii)    in the event such Incremental Facility is an Incremental Term Facility, such Incremental Facility shall (A) have a final maturity no earlier than the Maturity Date, (B) have a

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weighted average life no shorter than that of the Term Loan Facility and any other Incremental Term Facilities outstanding and (C) not have any terms which require it to be voluntarily or mandatorily prepaid prior to the repayment in full of the Term Loans (including any other Incremental Term Loans), unless accompanied by at least a ratable payment of the Term Loans;
(iv)    in the event such Incremental Facility is an Incrementala Revolving Facility, (A) the terms and provisions of all Incremental Revolving Facilities shall be identical to the Revolving Facility terms and provisions (other than the provisions solely applicable to the 2017 Incremental Revolving Facility); and (B) the Borrower shall use the proceeds (including any Letters of Credit issued thereunder) of such Incremental Revolving Facilities for working capital and general corporate purposes; and
(v)    The terms, provisions and documentation of an Incremental Facility shall be as agreed between the Borrower and the Incremental Lenders providing such Incremental Facility, and to the extent such terms and documentation for the Incremental Facility are not substantially consistent with the applicable Loan Documents, they shall be reasonably satisfactory to the Administrative Agent, unless such terms (A) are more favorable to the Borrower, taken as a whole, than the Loan Documents in respect of the Facilities (or the Lenders under the Facilities receive the benefit of the more restrictive terms, which, for avoidance of doubt, may be provided to them without their consent), in each case, as certified by a Responsible Officer of the Borrower in good faith, (B) concern pricing (including interest rates, rate floors, fees, OID or other fees), the amortization schedule, commitment reductions, prepayments and any prepayment premiums applicable to such Incremental Facility or (C) apply after the latest then applicable Maturity Date; provided that, (x) a financial maintenance covenant may be added for the benefit of the Incremental Revolving Facilities (but not for the benefit of the Term Loan Facility or any Incremental Term Facility) without the consent of the Administrative Agent or any of the Lenders other than the Incremental Revolving Lenders and (y) to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Facility, no consent shall be required from the Administrative Agent to the extent that such financial maintenance covenant is also added for the benefit of the existing Term Loan Facility and any existing Incremental Facility existing at the time such subsequent Incremental Term Facility is incurred.
(e)    Most Favored Nations. If any Incremental Term Facility is incurred after the ClosingSeventh Amendment Effective Date, in the event that the Weighted Average Yield for any Incremental Term Facility exceeds the Weighted Average Yield for the Term Loan Facility by more than 50 basis points (the “Excess”), then the interest rate margins for the Term Loan shall be increased to the extent necessary to eliminate such Excess; provided that, in determining the Weighted Average Yield applicable to the Incremental Term Facility and the Term Loan Facility, (i) customary arrangement, structuring or commitment fees payable to the Arrangers or any bookrunner (or their respective affiliates) in connection with the Term Loan or to one or more arrangers or bookrunners (or their respective affiliates) of any Incremental Term Facility shall be excluded, (ii) OID and upfront fees paid to the lenders thereunder shall be included (with OID being equated to interest based on an assumed four-year life to maturity or, if shorter, the actual weighted average life to maturity) and (iii) if the Incremental Term Facility includes an interest rate floor greater than the applicable interest rate floor under the existing Term Loan Facility, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the existing Term

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Loan Facility shall be required, but only to the extent an increase in the interest rate floor in the existing Term Loan Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to the existing Term Loan Facility may be increased to the extent necessary in respect of such differential between interest rate floors; provided that each basis point increase to the interest rate floor of the Term Loans shall count as one basis point of increase in the interest rate margin to the Term Loans for purposes of eliminating the Excess.
(f)    On each Incremental Facility Effective Date with respect to each Incremental Revolving Facility, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender providing such Incremental Revolving Facility shall make the Incremental Facility available to the Borrower, (ii) each of the existing Incremental Revolving Lenders (if any) shall assign to each of the new Incremental Revolving Lenders, and each of the new Incremental Revolving Lenders shall purchase from each of the existing Incremental Revolving Lenders (if any), at the principal amount thereof (together with accrued interest), such interests in the Incremental Revolving Loans outstanding on such Incremental Facility Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Incremental Revolving Loans will be held by existing Incremental Revolving Lenders and new Incremental Revolving Lenders ratably in accordance with their Incremental Revolving Commitments after giving effect to the addition of such new Incremental Revolving Commitments to the existing Incremental Revolving Commitments and (iii) each Incremental Revolving Lender shall become a Lender hereunder with respect to the Incremental Revolving Commitments and the Incremental Revolving Loans made pursuant thereto.
(g)    Amendment. With the consent of the Lenders providing an Incremental Facility, the Borrower and the Administrative Agent (and without the consent of the other Lenders), this Agreement shall be amended in a writing (which may be executed and delivered by the Borrower and the Administrative Agent) (the “Incremental Amendment”) to reflect any changes necessary to give effect to such Incremental Facility in accordance with its terms (including, without limitation, to give such Incremental Facility the benefits of Section 2.05, as applicable). Each Incremental Facility shall be effected pursuant to an Incremental Amendment, which shall be recorded in the Register, and each Incremental Lender providing such Incremental Facility shall be subject to the requirements set forth in Section 3.01(e). The Incremental Amendment with respect to an Incremental Revolving Facility may include, among other things, customary provisions regarding (i) Letters of Credit and reimbursement obligations with respect thereto, (ii) cash collateral obligations with respect to Letters of Credit, (iii) swing line loans and participations therein, and (iv) Incremental Revolving Lenders that are Defaulting Lenders. In connection with any Incremental Amendment, the Borrower shall deliver or cause to be delivered within the time period requested by the Administrative Agent, any legal opinions, mortgage modifications, amendments to Security Documents or other documents, in each case, as reasonably requested by the Administrative Agent in connection with such transaction.
(h)    Conflicting Provisions. This Section shall supersede any provisions in Section 2.13 to the contrary.
2.16    Refinancing Debt.

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(a)    Refinancing Facility. The Borrower may, without the consent of any Lender, extend, refinance, renew or replace, in whole or in part, the Loans under any Facility or the Commitments under the Incremental Revolving Facility with one or more term loan facilities (each, a “Refinancing Term Facility”) or one or more revolving credit facilities (each, a “Refinancing Revolving Facility”) (each Refinancing Term Facility and Refinancing Revolving Facility, a “Refinancing Facility”); provided that any such request for a Refinancing Facility shall be in a minimum amount equal to the lesser of (i) $25,000,000 and (ii) the entire amount of any Facility which is being extended, refinanced, renewed or replaced under this Section 2.16.
(b)    Refinancing Facility Lender. A Refinancing Facility may be provided by (i) an existing Lender (but no Lender shall be obligated to provide a commitment in respect of a Refinancing Facility, nor shall the Borrower have any obligation to approach any existing Lenders to provide a commitment in respect of a Refinancing Facility) or (ii) any other Refinancing Facility Lender so long as any such Person is approved by the Administrative Agent and any other Person who would have consent rights pursuant to Section 10.06(b) if such Refinancing Facility Lender was becoming an Incrementala Revolving Lender or Term Lender, as applicable. Subject to any such consents being received and if not already a party hereto, any such Refinancing Facility Lender may become a party to this Agreement by entering into a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent.
(c)    Effective Date. In connection with any Refinancing Facility, the Administrative Agent and the Borrower shall determine the effective date (the “Refinancing Facility Effective Date”). The Administrative Agent shall promptly notify the Borrower and the Lenders of the principal amount of the Refinancing Facility and the Refinancing Facility Effective Date.
(d)    Conditions to Effectiveness of Refinancing Facility. The effectiveness of each Refinancing Facility shall be subject to the following conditions:
(i)    the aggregate principal amount (or accreted value, if applicable) of any Refinancing Facility will not exceed the outstanding aggregate principal amount (or accreted value, if applicable) of any Facility which it is extending, refinancing, renewing or replacing plus any Permitted Refinancing Increase, unless such additional principal amount would otherwise be permitted pursuant to (and any such additional amount shall be deemed to have been incurred under) Section 7.03 and, if applicable, Section 7.01;
(ii)    such Refinancing Facility shall have the same guarantees as, and be secured on a pari passu basis with, the Secured Obligations; provided that, if agreed by the Borrower and the relevant Refinancing Facility Lenders, the Refinancing Facility may be subject to lesser guarantees or be unsecured or less secured, or the Liens securing the Refinancing Facility may rank junior to the Liens securing the Incremental Revolving Facility and Term Loan Facility;
(iii)    in the event such Refinancing Facility is a Refinancing Term Facility, such Refinancing Facility (A) shall have (1) a final maturity no earlier than the Maturity Date and (2) a weighted average life no shorter than that of the Term Loan Facility and (B) shall not have any

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terms which require it to be voluntarily or mandatorily prepaid prior to the repayment in full of the Term Loans, unless accompanied by at least a ratable payment of the Term Loans;
(iv)    in the event such Refinancing Facility is a Refinancing Revolving Facility, such Refinancing Facility shall have a final maturity no earlier than the Incremental Revolving Facility Maturity Date and shall require no amortization or mandatory commitment reduction prior to the Incremental Revolving Facility Maturity Date, unless accompanied by at least ratable amortization or mandatory commitment reduction, as applicable, of the Incremental Revolving Loans; and
(v)    to the extent such terms and documentation for the Refinancing Facility are not substantially consistent with the applicable Loan Documents, they shall be reasonably satisfactory to the Administrative Agent, unless such terms (A) are more favorable to the Borrower, taken as a whole, than the Loan Documents in respect of the Incremental Revolving Facility, in the case of a Refinancing Revolving Facility, or the Term Loan Facility, in the case of a Refinancing Term Facility (or the Lenders under the Incremental Revolving Facility or Term Loan Facility, as applicable, receive the benefit of the more restrictive terms, which, for avoidance of doubt, may be provided to them without their consent), in each case, as certified by a Responsible Officer of the Borrower in good faith, (B) concern pricing (including interest rates, rate floors, fees, OID or other fees), the amortization schedule, commitment reductions, prepayments and any prepayment premiums applicable to such Refinancing Facility or (C) apply after the Maturity Date.
(e)    Amendment. With the consent of the Lenders providing a Refinancing Facility, the Borrower and the Administrative Agent (and without the consent of the other Lenders), this Agreement shall be amended in a writing (which may be executed and delivered by the Borrower and the Administrative Agent) to reflect any changes necessary to give effect to such Refinancing Facility in accordance with its terms (including, without limitation, to give such Refinancing Facility the benefits of Section 2.05, as applicable).
(f)    Conflicting Provisions. This Section shall supersede any provisions in Section 2.13 to the contrary.
2.17    Cash Collateral.
(a)    Sections 2.03, 2.05 and 8.02(c) set forth certain additional requirements to deliver Cash Collateral hereunder. For purposes of Sections 2.03, 2.05 and 8.02(c), “Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the L/C Issuers and the Incremental Revolving Lenders, as collateral for the L/C Obligations, cash or deposit account balances pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and the applicable L/C Issuer (which documents are hereby consented to by the Incremental Revolving Lenders) in an amount equal to 103% of such L/C Obligations. Derivatives of such term have corresponding meanings. The Borrower, and to the extent provided by any Incremental Revolving Lender, such Incremental Revolving Lender, hereby grants to the Administrative Agent, for the benefit of the L/C Issuers and the Incremental Revolving Lenders, a security interest in all such cash and such deposit account balances therein and all proceeds of

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the foregoing. Cash Collateral shall be maintained in blocked deposit accounts at the Administrative Agent or another institution reasonably acceptable to the Administrative Agent.
(b)    Notwithstanding anything to the contrary contained in this Agreement, (i) Cash Collateral or other credit support (and proceeds thereof) provided by any Defaulting Lender pursuant to Section 2.03 to support the obligations of such Lender in respect of Letters of Credit shall be held and applied, first, to fund the L/C Advances of such Lender or such Lender’s Applicable Percentage of Incremental Revolving Loans that are Base Rate Loans that are used to repay Unreimbursed Amounts or L/C Advances with respect to which such collateral or other credit support was provided, as applicable, and, second, to fund any interest accrued for the benefit of the applicable L/C Issuer pursuant to Section 2.03(c)(vi) allocable to such Lender, and (ii) Cash Collateral and other credit support (and proceeds thereof) otherwise provided by or on behalf of any Loan Party under Sections 2.03, 2.05(c) or 8.02(c) to support L/C Obligations shall be held and applied, first, to the satisfaction of the specific L/C Obligations or obligations to fund participations therein of the applicable Defaulting Lender for which the Cash Collateral or other credit support was so provided and, second, if remedies under Section 8.02 shall have been exercised, to the application of such collateral or other credit support (or proceeds thereof) to any other Secured Obligations in accordance with Section 8.04.
(c)    Cash Collateral and other credit support (or a portion thereof as provided in clause (2) below) provided under Section 2.03 in connection with any Lender’s status as a Defaulting Lender shall be released to the Person that provided such collateral or other credit support (except as the applicable L/C Issuer and the Person providing such collateral or other credit support may agree otherwise (as applicable)) promptly following the earlier to occur of (A) the termination of such Lender’s status as a Defaulting Lender or (B) the applicable L/C Issuer’s good faith determination, (1) in the case of such Cash Collateral or other credit support provided by or on behalf a Defaulting Lender, that there remain outstanding no L/C Obligations as to which it has actual or potential fronting exposure in relation to such Lender as to which it desires to maintain Cash Collateral or other credit support and (2) in the case of such Cash Collateral or other credit support provided by or on behalf of a Loan Party, that the outstanding L/C Obligations as to which it has actual or potential fronting exposure in relation to such Lender are less than the value of such Cash Collateral or other credit support provided (such release to be provided upon reasonable request from the Borrower to the Administrative Agent and only to the extent of the excess amount of Cash Collateral or other credit support provided); subject, however, to the additional condition that, as to any such collateral or other credit support provided by or on behalf of a Loan Party, no Default or Event of Default shall then have occurred and be continuing.
2.18    Defaulting Lenders. Notwithstanding anything contained in this Agreement to the contrary, 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)    Reallocation of Loan Payments. Any payment or prepayment (i) of any portion of the principal amount of Loans of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) shall be applied, first, to the Loans of other Incremental Revolving Lenders as if such Defaulting Lender had no Loans outstanding, until such time as the Outstanding Amount of Incremental Revolving Loans of each Lender shall equal its pro rata share thereof based on its Applicable Percentage (without giving effect to Section 2.18(c)),

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ratably to the Lenders in accordance with their Applicable Percentages of Loans being repaid or prepaid, second, to the then outstanding amounts (including interest thereon) owed under the terms hereof by such Defaulting Lender to the Administrative Agent or (to the extent the Administrative Agent has received notice thereof) to any other Lender, ratably to the Persons entitled thereto, third, to the posting of Cash Collateral in respect of its Applicable Percentage of L/C Obligations, ratably to the L/C Issuers in accordance with their respective applicable fronting exposure, and fourth, the balance, if any, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction, and (ii) of any other amounts thereafter received by the Administrative Agent for the account of such Defaulting Lender (including amounts made available to the Administrative Agent by such Defaulting Lender pursuant to Section 10.08) to have been paid to such Defaulting Lender and applied on behalf of such Defaulting Lender, first, to the liabilities above referred to in item second of clause (i) above, second, to the matters above referred to in item third of clause (i) above, and third, the balance, if any, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction. Any of such amounts as are reallocated pursuant to this Section 2.18(a) that are payable or paid (including pursuant to Section 10.08) to such Defaulting Lender shall be deemed paid to such Defaulting Lender and applied by the Administrative Agent on behalf of such Defaulting Lender, and each Lender hereby irrevocably consents thereto.
(b)    Certain Fees. Such Defaulting Lender (i) shall not be entitled to receive any commitment fee on the unused portion of its Commitment pursuant to Section 2.09(a) for any period during which such Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to such Defaulting Lender in respect of its unused Commitment) and (ii) shall not be entitled to receive any Letter of Credit Fees pursuant to Section 2.03(i) for any period during which such Lender is a Defaulting Lender (and, unless required by the following sentence, the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to such Defaulting Lender). If any Defaulting Lender’s L/C Obligations are neither cash collateralized nor reallocated pursuant to this Section 2.18, then, without prejudice to any rights or remedies of the L/C Issuer or any Lender hereunder, all fees payable to such Defaulting Lender under Section 2.03 shall be payable to the L/C Issuer until such L/C Obligations are Cash Collateralized or reallocated.
(c)    Reallocation of Applicable Percentages to Reduce Fronting Exposure. During any period in which there is a Defaulting Lender, for purposes of computing the amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit pursuant to Section 2.03, the “Applicable Percentage” of each non-Defaulting Lender shall be computed without giving effect to the Commitment of such Defaulting Lender in either the numerator or the denominator; provided, that, in all cases, the obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit shall not exceed the positive difference, if any, between (1) the Commitment of such non-Defaulting Lender and (2) the aggregate Outstanding Amount of the Incremental Revolving Loans of such Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all other L/C Obligations (prior to giving effect to such reallocation). For avoidance of doubt, this Section 2.18(c) will operate for the benefit of the L/C Issuer notwithstanding the fact that a Letter of Credit is issued at the time that one or more Defaulting Lenders exist hereunder (regardless of whether the L/C Issuer has notice thereof). Notwithstanding any provision contained herein to the contrary, during any period

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in which a Default or Event of Default has occurred and is continuing the provisions of this Section 2.18(c) shall not apply.
A Lender that has become a Defaulting Lender because of an event referenced in the definition of Defaulting Lender may cure such status and shall no longer constitute a Defaulting Lender as a result of such event when (i) such Defaulting Lender shall have fully funded or paid, as applicable, all Loans, participations in respect of Letters of Credit or other amounts required to be funded or paid by it hereunder as to which it is delinquent (together, in each case, with such interest thereon as shall be required to any Person as otherwise provided in this Agreement), (ii) the Administrative Agent and each of the Borrower shall have received a certification by such Defaulting Lender of its ability and intent to comply with the provisions of this Agreement going forward, and (iii) each of (w) the Administrative Agent, (x) any L/C Issuer and any other Lender as to which a delinquent obligation was owed and (y) the Borrower, shall have determined (and notified the Administrative Agent) that they are satisfied, in their sole discretion, that such Defaulting Lender intends to continue to perform its obligations as a Lender hereunder and has all approvals required to enable it, to continue to perform its obligations as a Lender hereunder. No reference in this subsection to an event being “cured” shall by itself preclude any claim by any Person against any Lender that becomes a Defaulting Lender for such damages as may otherwise be available to such Person arising from any failure to fund or pay any amount when due hereunder or from any other event that gave rise to such Lender’s status as a Defaulting Lender.
2.19    Dutch Auction Repurchases.
(a)    Notwithstanding anything to the contrary contained in this Agreement, the Borrower and its Subsidiaries may at any time and from time to time purchase Term Loans, Incremental Term Loans and Refinancing Term Loans by conducting modified Dutch auctions (each, an “Auction”) (each Auction to be managed exclusively by the Administrative Agent or another investment bank of recognized standing elected by the Borrower following consultation with the Administrative Agent in accordance with the Auction Procedures (in such capacity, the “Auction Manager”)), so long as the following conditions are satisfied:
(i)    no Default or Event of Default shall have occurred and be continuing at the time of the purchase of any Term Loans, Incremental Term Loans and Refinancing Term Loans in connection with any Auction;
(ii)    the minimum principal amount (calculated on the face amount thereof) of all Term Loans, Incremental Term Loans and Refinancing Term Loans that the Borrower purchases in any such Auction shall be no less than $1,000,000 and whole increments of $500,000 in excess thereof (unless another amount is agreed to by the Administrative Agent and Auction Manager);
(iii)    the aggregate principal amount (calculated on the face amount thereof) of all Term Loans, Incremental Term Loans and Refinancing Term Loans so purchased by the Borrower or its Subsidiaries shall immediately and automatically be cancelled and retired by them on the settlement date of the relevant purchase (and may not be resold);

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(iv)    the Borrower will promptly advise the Administrative Agent of the total amount of all Term Loans, Incremental Term Loans and Refinancing Term Loans so purchased by the Borrower or its Subsidiaries and the Administrative Agent is authorized to make appropriate entries in the Register to reflect such cancellation and retirement; and
(v)    no more than one Auction may be ongoing at any one time.; and
(i)    no proceeds of Revolving Loans shall be utilized by the Borrower or any Subsidiary to purchase any Term Loans, Incremental Term Loans and Refinancing Term Loans.
(b)    The Borrower shall have no liability to any Lender for any termination of the respective Auction as a result of its failure to satisfy one or more of the conditions set forth above which are required to be met at the time which otherwise would have been the time of purchase of Term Loans, Incremental Term Loans or Refinancing Term Loans pursuant to the respective Auction, and any such failure shall not result in any Default hereunder. With respect to all purchases of Term Loans, Incremental Term Loans and Refinancing Term Loans made by the Borrower pursuant to this Section 2.19, (i) the Borrower shall pay on the settlement date of each such purchase all accrued and unpaid interest (except to the extent otherwise set forth in the relevant offering documents), if any, on the purchased Term Loans, Incremental Term Loans and Refinancing Term Loans up to the settlement date of such purchase and (ii) such purchases (and the payments made by the Borrower or its Subsidiaries and the cancellation of the purchased Term Loans, Incremental Term Loans or Refinancing Loans, in each case, in connection therewith) shall not constitute voluntary or mandatory payments or prepayments for purposes of Sections 2.05 or 2.07.
(c)    The Administrative Agent and the Lenders hereby consent to the Auctions and the other transactions contemplated by this Section 2.19 (provided that no Lender shall have an obligation to participate in any such Auctions) and hereby waive the requirements of any provision of this Agreement (including, without limitation, Sections 2.05, 2.07, 2.12, 2.13 and 10.06, it being understood and acknowledged that purchases of the Term Loans, Incremental Term Loans and Refinancing Term Loans by the Borrower or its Subsidiaries contemplated by this Section 2.19 shall not constitute Investments by the Borrower) that may otherwise prohibit any Auction or any other transaction contemplated by this Section 2.19. The Auction Manager acting in its capacity as such hereunder shall be entitled to the benefits of the provisions of Article IX and Section 10.04 mutatis mutandis as if each reference therein to the “Administrative Agent” were a reference to the Auction Manager, and the Administrative Agent shall cooperate with the Auction Manager as reasonably requested by the Auction Manager in order to enable it to perform its responsibilities and duties in connection with each Auction.
2.20    Open Market Repurchases.
(a)    Notwithstanding anything to the contrary contained in this Agreement, the Borrower and its Subsidiaries may at any time and from time to time make open market purchases of Term Loans, Incremental Term Loans and Refinancing Term Loans (each, an “Open Market Purchase”), so long as no Default or Event of Default shall have occurred and be continuing on the time of such Open Market Purchase; provided that no proceeds of Revolving Loans shall

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be utilized by the Borrower or any Subsidiary to purchase any Term Loans, Incremental Term Loans and Refinancing Term Loans.
(b)    The aggregate principal amount (calculated on the face amount thereof) of all Term Loans, Incremental Term Loans and Refinancing Term Loans so purchased by the Borrower or its Subsidiaries shall immediately and automatically be cancelled and retired by them on the settlement date of the relevant purchase (and may not be resold).
(c)    The Borrower will promptly advise the Administrative Agent of the total amount of all Term Loans, Incremental Term Loans and Refinancing Term Loans so purchased by the Borrower or its Subsidiaries and the Administrative Agent is authorized to make appropriate entries in the Register to reflect such cancellation and retirement.
(d)    With respect to all purchases of Term Loans, Incremental Term Loans and Refinancing Term Loans made by the Borrower pursuant to this Section 2.20, (i) the Borrower or its Subsidiaries shall pay on the settlement date of each such purchase all accrued and unpaid interest, if any, on the purchased Term Loans, Incremental Term Loans and Refinancing Term Loans up to the settlement date of such purchase (except to the extent otherwise set forth in the relevant purchase document as agreed by the respective selling Lender) and (ii) such purchases (after the payments made by the Borrower or its Subsidiaries and the cancellation of the purchased Term Loans, Incremental Term Loans and Refinancing Term Loans, in each case in connection therewith) shall not constitute voluntary or mandatory payments or prepayments for purposes of Sections 2.05 or 2.07.
(e)    The Administrative Agent and the Lenders hereby consent to the Open Market Purchases contemplated by this Section 2.20 and hereby waive the requirements of any provision of this Agreement (including, without limitation, Sections 2.05, 2.07, 2.12, 2.13 and 10.06, it being understood and acknowledged that purchases of the Term Loans, Incremental Term Loans and Refinancing Term Loans by the Borrower or its Subsidiaries contemplated by this Section 2.20 shall not constitute Investments by the Borrower or its Subsidiaries) that may otherwise prohibit any Open Market Purchase by this Section 2.20.
Article III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01    Taxes.
(a)    Payments Free of Taxes. Any and all payments by or on behalf 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 Taxes, except as required by applicable law. If any applicable law (as determined in the good faith of the applicable withholding agent) requires the deduction or withholding of any Tax from any such payment by a withholding agent, then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under

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this Section 3.01(a)) the Administrative Agent, Lender or L/C Issuer, as the case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made.
(b)    Payment of Other Taxes by the Borrower. Without duplication of any obligation set forth in subsection (a) above, the Loan Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of any Other Taxes.
(c)    Indemnification by the Borrower. The Loan Parties shall jointly and severally indemnify the Administrative Agent, each Lender and each L/C Issuer within 10 days after demand therefor for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by, or required to be withheld or deducted from a payment to, the Administrative Agent, such Lender or such L/C Issuer, as the case may be, on or with respect to any payment made by or on account of any obligation of the Loan Parties under 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 the Borrower by a Lender or an L/C Issuer (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or an L/C Issuer, shall be conclusive absent manifest error.
(d)    Evidence of Payments. As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 3.01, the applicable Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(e)    Status of Lenders. Any Lender that is entitled to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Loan Document shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable law and from time to time when reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable law or 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 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.
Each Lender that is not a Foreign Lender shall deliver to the Borrower and Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter as prescribed by applicable law or upon the reasonable request of the Borrower or Administrative Agent), two duly completed and executed copies of IRS Form W-9.

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Without limiting the generality of the foregoing, each Foreign Lender holding any Loan to the Borrower shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative Agent, but only if such Foreign Lender is legally entitled to do so), two copies of whichever of the following is applicable or any subsequent version thereof or successor thereto:
(i)    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, duly completed and executed copies of IRS Form W-8BEN or IRS W-8BEN-E, as applicable, 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 IRS W-8BEN-E, as applicable, 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,
(ii)    duly completed and executed copies of IRS Form W-8ECI,
(iii)    in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit M-1 to the effect that such Foreign Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) duly completed and executed copies of IRS Form W-8BEN or W-8BEN-E, as applicable,
(iv)    to the extent a Foreign Lender is not the beneficial owner, duly completed and executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate substantially in the form of Exhibit M-2 or Exhibit M-3, IRS Form W-9, and/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 M-4 on behalf of each such direct and indirect partner, and
(v)    duly completed and executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States Federal withholding tax duly completed and executed together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or Administrative Agent to determine the withholding or deduction required to be made; provided, that notwithstanding anything to the contrary in this Section 3.01(e), the completion, execution and submission of the documentation described in this clause (v) 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.
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

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applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the 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 as 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 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 the purposes of this paragraph, “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 Borrower and the Administrative Agent in writing of its legal inability to do so.
Notwithstanding the foregoing, no Lender nor any Participant shall be required to deliver any form or other document under this Section 3.01(e) that it is not legally entitled to deliver.
(f)    Treatment of Certain Refunds. If the Administrative Agent, any Lender or any L/C Issuer receives a refund with respect to Taxes to which it has been indemnified pursuant to this Section 3.01 (including by the payment of additional amounts pursuant to this Section 3.01), which in the reasonable discretion and good faith judgment of such Administrative Agent, Lender or L/C Issuer is allocable to such payment, it shall promptly pay such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Administrative Agent, Lender or L/C Issuer incurred in obtaining such refund and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, however, that the Borrower agrees to promptly return such amount, net of any incremental additional costs (plus any penalties, interest or other charges imposed by the relevant Governmental Authority), to the applicable Administrative Agent, Lender or L/C Issuer, as the case may be, if it receives notice from the applicable Administrative Agent, Lender or L/C Issuer that such Administrative Agent, Lender or L/C Issuer is required to repay such refund to the relevant Governmental Authority. Notwithstanding anything to the contrary in this paragraph (f), in no event will the Administrative Agent, any Lender or L/C Issuer be required to pay any amount to the Borrower pursuant to this paragraph (f) the payment of which would place the Administrative Agent, any Lender or L/C Issuer 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 subsection shall not be construed to require the Administrative Agent, any Lender or L/C Issuer to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the Borrower or any other Person.
(g)    Survival. Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the

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replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
3.02    Illegality. If any Lender determines that as a result of any Change in Law it becomes unlawful, or that any Governmental Authority asserts that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Eurocurrency Rate Loans, or to determine or charge interest rates based upon the Eurocurrency Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the applicable interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, (a) any obligation of such Lender to make or continue Eurocurrency Rate Loans or to convert Base Rate Loan to Eurocurrency Rate Loans, shall be suspended and (b) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurocurrency Rate component of the Base Rate, the interest rate on Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurocurrency Rate component of the Base Rate, in each case, until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (i) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or convert all such Eurocurrency Rate Loans of such Lender to Base Rate Loans (the interest rate on Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurocurrency Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurocurrency Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurocurrency Rate Loans and (ii) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurocurrency Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurocurrency Rate component thereof until the Administrative Agent is advised in writing by such Lender, which it shall do as promptly as possible, that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurocurrency Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
3.03    Inability to Determine Rates.
If the Required Lenders determine that for any reason in connection with any request for a Eurocurrency Rate Loan or a conversion to or continuation thereof that (ai) adequate and reasonable means do not exist for determining the Eurocurrency Rate (including because the Eurocurrency Rate is not available or published on a current basis) for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan, or (bii) the Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Eurocurrency Rate Loan, the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (i) the obligation of the Lenders to make or maintain Eurocurrency Rate Loans in the affected currency or currencies shall be suspended and (ii) in the event of a determination described in the preceding sentence with respect to the Eurocurrency Rate component of the

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Base Rate, the utilization of the Eurocurrency Rate component in determining the Base Rate shall be suspended, in each case, until the Administrative Agent (upon the instruction of the Required Lenders, who agree to so instruct the Administrative Agent once the circumstances giving rise to the inability ability to determine rates no longer exist) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurocurrency Rate Loans or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein.
3.04    Increased Costs; Reserves on Eurocurrency Rate Loans.
(a)    Increased Costs Generally. If any Change in Law shall:
(i)    impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the Eurocurrency Rate contemplated by Section 3.04(e));
(ii)    subject any Lender, any L/C Issuer or the Administrative Agent to any Taxes (other than Indemnified Taxes or Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii)    impose on any Lender or any L/C Issuer or the London interbank market any other condition, cost or expense affecting this Agreement or Eurocurrency Rate Loans made by such Lender or any Letter of Credit or participation therein (other than Taxes addressed by Section 3.01 and Excluded Taxes);
and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Eurocurrency Rate Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or such L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon written request of such Lender or L/C Issuer setting forth in reasonable detail such increased costs, the Borrower will pay to such Lender or L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered; provided that before making any such demand, each Lender agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and so long as such efforts would not be materially disadvantageous to it, in its reasonable discretion, in any legal, economic or regulatory manner) to designate a different Eurocurrency lending office if the making of such designation would allow the Lender or its Eurocurrency lending office to continue to perform its obligation to make Eurocurrency Rate Loans or to continue to fund or maintain Eurocurrency Rate Loans and avoid the need for, or reduce the amount of, such increased cost.

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(b)    Capital Requirements. If any Lender or any L/C Issuer reasonably determines that any Change in Law affecting such Lender or L/C Issuer or any Lending Office of such Lender or such Lender’s or L/C Issuer’s holding company, if any, regarding capital or liquidity requirements has the effect of reducing the rate of return on such Lender’s or L/C Issuer’s capital or on the capital of such Lender’s or L/C Issuer’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such L/C Issuer, to a level below that which such Lender or L/C Issuer or such Lender’s or L/C Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or L/C Issuer’s policies and the policies of such Lender’s or L/C Issuer’s holding company with respect to capital adequacy), then from time to time, after submission to the Borrower (with a copy to the Administrative Agent) of a written request therefor setting forth in reasonable detail the change and the calculation of such reduced rate of return, the Borrower will pay to such Lender or L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or L/C Issuer or such Lender’s or L/C Issuer’s holding company for any such reduction suffered.
(c)    Certificates for Reimbursement. A certificate of a Lender or L/C Issuer setting forth the amount or amounts necessary to compensate such Lender or L/C Issuer or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section, describing the basis therefor and showing the calculation thereof in reasonable detail, and delivered to the Borrower shall be conclusive, absent manifest error. The Borrower shall pay such Lender or L/C Issuer, as the case may be, the amount shown as due on any such certificate within 30 days after receipt thereof.
(d)    Delay in Requests. Failure or delay on the part of any Lender or any L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender’s or L/C Issuer’s right to demand such compensation, provided that the Borrower shall not be required to compensate a Lender or an L/C Issuer pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than 90 days prior to the date that such Lender or L/C Issuer, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 90-day period referred to above shall be extended to include the period of retroactive effect thereof).
(e)    Additional Reserve Requirements. The Borrower shall pay to each Lender, (i) as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”), additional interest on the unpaid principal amount of each Eurocurrency Rate Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as reasonably determined by such Lender in good faith, which determination shall be conclusive, absent manifest error), and (ii) as long as such Lender shall be required to comply with any reserve ratio requirement or analogous requirement of any other central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the Eurocurrency Rate Loans, such additional costs (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual costs allocated to such Commitment or Loan by such Lender (as determined by such Lender in good faith, which

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determination shall be conclusive, absent manifest error), which in each case shall be due and payable on each date on which interest is payable on such Loan, provided the Borrower shall have received at least 10 Business Days’ prior notice (with a copy to the Administrative Agent) of such additional interest or costs from such Lender describing the basis therefor and showing the calculation thereof, in each case, in reasonable detail. If a Lender fails to give notice 10 Business Days prior to the relevant Interest Payment Date, such additional interest or costs shall be due and payable within 30 days from receipt of such notice.
(f)    Certain Rules Relating to the Payment of Additional Amounts. If any Lender requests compensation pursuant to this Section 3.04, or the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, such Lender shall either (A) forego payment of such additional amount from the Borrower or (B) reasonably afford the Borrower the opportunity to contest, and reasonably cooperate with the Borrower in contesting, the imposition of any Indemnified Taxes or other amounts giving rise to such payment; provided that the Borrower shall reimburse such Lender for its reasonable and documented out-of-pocket costs, including reasonable and documented attorneys’ and accountants’ fees and disbursements incurred in so cooperating with the Borrower in contesting the imposition of such Indemnified Taxes or other amounts.
3.05    Compensation for Losses. Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
(a)    any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
(b)    any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by the Borrower;
(c)    any failure by the Borrower to make payment of any drawing under any Letter of Credit (or interest due thereon) denominated in an Alternative Currency or its scheduled due date or any payment thereof in a different currency; or
(d)    any assignment of a Eurocurrency Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrower pursuant to Section 10.13;
including any foreign exchange losses and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan, from fees payable to terminate the deposits from which such funds were obtained or from the performance of any foreign exchange contract, but excluding any loss of anticipated profits. The Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each Eurocurrency Rate Loan made by

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it at the Eurocurrency Rate used in determining the Eurocurrency Rate for such Loan by a matching deposit or other borrowing in the offshore interbank market for such currency for a comparable amount and for a comparable period, whether or not such Eurocurrency Rate Loan was in fact so funded.
3.06    Mitigation Obligations; Replacement of Lenders.
(a)    Designation of a Different Lending Office. If any Lender requests compensation under Section 3.04, or the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then such Lender shall (i) use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (A) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (B) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender and (ii) promptly inform the Borrower and Administrative Agent when the circumstances giving rise to the applicability of such Sections no longer exists. The Borrower hereby agrees to pay all reasonable and documented costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b)    Replacement of Lenders. If any Lender requests compensation under Section 3.04, if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, if any Lender gives a notice pursuant to Section 3.02 or if any Lender is at such time a Defaulting Lender, then the Borrower may replace such Lender in accordance with Section 10.13.
3.07    Survival. The parties’ obligations under this Article III shall survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder.
Article IV.
CONDITIONS PRECEDENT
4.01    Closing Date. The effectiveness of this Agreementthe Seventh Amendment is subject to satisfaction of the following conditions precedent:
(a)    The Administrative Agent’s receipt of the following, each of which shall be (w) originals, telecopies or electronic copies (followed promptly by originals), (x) properly executed by a duly authorized officer of the signing Loan Party, if and as applicable, (y) dated on or before the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and (z) in form and substance reasonably satisfactory to the Administrative Agent and, in the case of Security Documents, the Collateral Trustee:
(i)    executed counterparts of (a) this Agreement from the parties hereto, (b) the Guaranty from each of the Loan Parties, and (c) the Collateral Trust Agreement from the Borrower, each of the Guarantors, the Administrative Agent, the Priority Lien Notes Trustee, the Collateral Trustee, the Junior Collateral Trustee and the other parties thereto;

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(ii)    Notes executed by the Borrower in favor of each Lender requesting Notes;
(iii)    the Gibraltar Pledge Agreement, duly executed by each party thereto, together with:
(1)    to the extent that any Capital Stock pledged pursuant to the Gibraltar Pledge Agreement is certificated and required to be delivered thereunder, the original share certificates for such Capital Stock accompanied by undated share transfer forms or other approved or instruments of transfer executed in blank,
(2)    financing statements in form appropriate for filing in the Office of Recorder of Deeds in the District of Columbia with respect to the Gibraltar Pledge Agreement in order to perfect the Liens created under the Gibraltar Pledge Agreement,
(3)    results of recent lien searches (or their equivalent under the Laws of Gibraltar) with respect to Gibraltar Holdings in the jurisdiction in which such Person is organized and the District of Columbia;
(4)    an irrevocable proxy and power of attorney in favor of the Collateral Trustee and granted pursuant to the Gibraltar Pledge Agreement; and
(5)    any documents that are required to be delivered under the Gibraltar Pledge Agreement.
(iv)    such certificates of resolutions or other action, incumbency certificates and/or other certificates of duly authorized officers of each Loan Party and each Restricted Subsidiary party to a Loan Document, in each case, as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each officer of each Loan Party or Restricted Subsidiary executing the Loan Documents to which each Loan Party or Restricted Subsidiary is a party;
(v)    such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vi)    the executed opinion of Jones Day, counsel to the Borrower and special New York counsel to the other Loan Parties, addressed to the Administrative Agent, the Collateral Trustee and each Lender, as to the matters set forth in Exhibit H-1;
(vii)    [reserved];
(viii)    the executed opinion of Triay Stagnetto Neish, special Gibraltar counsel to the Loan Parties, addressed to the Administrative Agent, the Collateral Trustee and each Lender, as to the matters set forth in Exhibit H-2;

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(ix)    the executed opinion of Bingham Greenebaum Doll LLP, special Indiana counsel to the Loan Parties, addressed to the Administrative Agent, the Collateral Trustee and each Lender, as to the matters set forth in Exhibit H-3;
(x)    [reserved];
(xi)     a certificate of a Responsible Officer either (A) attaching copies of all material consents, licenses and approvals required in connection with the execution, delivery and performance by each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect or (B) stating that no such consents, licenses or approvals are so required;
(xii)    (i) the Audited Financial Statements, (ii) unaudited consolidated financial statements (each of which shall have undergone a SAS 100 review) for each of the first three fiscal quarters of the fiscal year ending December 31, 2016 (and the corresponding period of the preceding fiscal year) prepared in accordance with GAAP, (iii) an unaudited pro forma consolidated balance sheet and income statement of the Borrower as of December 31, 2016 and for the four-quarter period then ended, giving effect to the effectiveness of the Plan of Reorganization and the Transactions (including the adoption of fresh-start accounting) as if the effectiveness of the Plan of Reorganization and the Transactions had occurred as of such date (in the case of the balance sheet) or at the beginning of such period (in the case of the income statements), in the case of each of clauses (i) through (iii), meeting the requirements of Regulation S-X under the Securities Act of 1933 (as amended) and (iv) financial projections (including the assumption on which such projections are based) for fiscal years 2017 through 2021;
(xiii)    a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d), (j), (l) (solely with respect to clauses (a) and (e) thereof) and (m) and 4.02(a) and (b) have been satisfied, and (B) that there has not occurred since December 31, 2016, any Closing Date Material Adverse Effect;
(xiv)    a solvency certificate from the chief financial officer of the Borrower in the form of Exhibit K, which demonstrates that the Borrower and its Restricted Subsidiaries on a consolidated basis, are, and after giving effect to the Transactions and the other transactions contemplated hereby, will be, Solvent.
(b)    [Reserved].
(c)    (i) Not less than 15 business days prior to the Closing Date, the Borrower shall have obtained (a) a public corporate credit rating from Moody’s, (b) a private indicative corporate credit rating from S&P, (c) a public credit rating for the Term Loans and the Priority Lien Notes from Moody’s and (d) a private indicative credit rating for the Term Loans and the Priority Lien Notes from S&P; and (ii) on or prior to the Closing Date, the Borrower shall have obtained public corporate credit ratings or public credit ratings, as applicable, from S&P consistent with the ratings obtained in the foregoing clause (i).
(d)    The Borrower and its Restricted Subsidiaries shall have complied in all material respects with all state and federal regulations regarding bonding requirements.

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(e)    The Arrangers shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to any material claim settlement, including but not limited to, any allowance of or settlement related to the MEPP Claim, above the amounts held in reserve by the Borrower and its Restricted Subsidiaries as of January 11, 2017.
(f)    The Bankruptcy Court shall have entered an order approving the Backstop Commitment Agreement and such order shall not have been stayed and shall be in full force and effect on the Closing Date, and the Backstop Commitment Agreement shall remain in full force and effect and shall not have been modified or amended in any manner that adversely affects the rights and interest of the Arrangers or the Lenders.
(g)    Administrative Agent shall have received a certificate from the applicable Loan Party’s insurance broker or other evidence satisfactory to it that all insurance required to be maintained pursuant to Section 6.07 is in full force and effect, together with endorsements naming Collateral Trustee, for the benefit of Secured Parties, as additional insured and loss payee thereunder to the extent required under Section 6.07.
(h)    In order to create in favor of Collateral Trustee, for the benefit of Secured Parties, a valid, perfected First Priority security interest in the Collateral (subject to the limitations set forth in the Security Documents), each Loan Party shall have delivered to Collateral Trustee:
(i)     executed counterparts of the Security Agreement;
(ii)     except to the extent set forth on Schedule 6.18 or otherwise not required as of the Closing Date pursuant to the terms of the Security Agreement, evidence reasonably satisfactory to Administrative Agent of the compliance by each Loan Party of their obligations under the Security Agreement and the other Security Documents (including their obligations to execute or authorize, as applicable, and deliver UCC financing statements (including, without limitation, as-extracted financing statements), originals of securities, instruments and chattel paper and any agreements governing deposit and/or securities accounts as provided therein);
(iii)     a completed Collateral Questionnaire dated the Closing Date and executed by a Responsible Officer of each Loan Party, together with all attachments contemplated thereby;
(iv)     fully executed IP Security Agreements, in proper form for filing or recording in the United States Patent and Trademark Office and the United States Copyright Office, as applicable, memorializing and recording the encumbrance of the Intellectual Property listed in Schedule 6 to the Security Agreement; and
(v)     except to the extent set forth on Schedule 6.18 or otherwise not required as of the Closing Date pursuant to the terms of the Security Agreement, evidence that each Loan Party shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including the PIC Intercompany Note and any other intercompany notes evidencing Indebtedness permitted to be incurred pursuant to Section 7.03) and made or

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caused to be made any other filing and recording (other than as set forth herein) reasonably required by the Administrative Agent.
(i)    Any fees required to be paid on or before the Closing Date to the Agents, the Arrangers or the Lenders under this Agreement, the Fee Letters or otherwise in connection with the Facilities shall have been paid and, unless waived by the Agents, the Arrangers or the Lenders, as applicable, to the extent invoiced at least three Business Days prior to the Closing Date, the Borrower shall have paid all reasonable and documented costs and expenses of the Agents, Arrangers and the Lenders (including the reasonable and documented fees and expenses of counsel to the Agents and the Lenders, plus such additional amounts of such reasonable and documented fees and expenses (including filing fees in respect of collateral) as shall constitute its reasonable estimate of such fees and expenses incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Agents)).
(j)    There shall not exist any action, suit, investigation, litigation, proceeding or hearing, pending or threatened in any court or before any arbitrator or Governmental Authority that affects the Financing Transactions or otherwise impairs the ability of the Loan Parties to consummate the Transactions (other than the Bankruptcy Cases) and no preliminary or permanent injunction or order by a state or federal court shall have been entered, in each case that would be material and adverse to the Arrangers, the Agents or the Lenders. All Governmental Authorities and Persons shall have approved or consented to the transactions contemplated hereby, to the extent required, and such approvals shall be in full force and effect.

(k)    The Arrangers and the Agents shall have received at least three business days prior to the Closing Date all documentation and other information required by regulatory authorities with respect to the Borrower and the other Loan Parties under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, that has been requested by the Arrangers or the Agents at least ten Business Days prior to the Closing Date.
(l)    In connection with the Plan of Reorganization or the Plan Support Agreement and the transactions contemplated thereby: (a) any of the documents executed in connection with the implementation of the Plan of Reorganization or the Plan Support Agreement (collectively, the “Plan Documents”), to the extent they contain provisions differing in any material respect from, or not described in, the Plan of Reorganization or the Plan Support Agreement, that are material and adverse to the rights or interests of any or all of the Arrangers, the Administrative Agent and the Lenders (collectively, the “Finance Parties”) shall be in form and substance satisfactory to the Arrangers in their good faith judgment; (b) there shall have been no supplement, modification, waiver or amendment to the Plan of Reorganization or the Plan Support Agreement that, in the good faith judgment of the Arrangers, is material and adverse to the rights or interests of any or all of the Finance Parties or the creditworthiness of the Borrower unless, in each case, the Arrangers shall have reasonably consented thereto in writing; (c) unless the Arrangers shall have consented thereto in writing, the Authorization Order shall not have been vacated, stayed, reversed or modified or amended in any respect that adversely affects the rights or interests of any or all of the Finance Parties in any material respect as determined by the Arrangers in good faith; (d) unless the Arrangers shall have consented thereto in writing, each of the Confirmation

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Order and the order of the Bankruptcy Court approving the Plan Support Agreement shall have been entered and shall be in full force and effect and shall not have been vacated, stayed, reversed or modified or amended in any respect that adversely affects the rights or interests of any or all of the Finance Parties in any material respect as determined by the Arrangers in good faith; and (e) all conditions precedent to the effectiveness of the Plan of Reorganization, as it may be amended, supplemented, modified or waived in accordance with clause (b) above, other than the closing and funding of the Term Loans and the assumption by the Borrower of the obligations under the Priority Lien Notes, shall have occurred (or will occur substantially concurrently with the closing of the Term Loans and the assumption by the Borrower of the obligations under the Priority Lien Notes) or been waived (to the extent such waiver is material and adverse to the rights or interests of any or all of the Finance Parties, with the written consent of the Arrangers), including, but not limited to, the issuance of the Convertible Securities, the completion of the transactions contemplated by the Rights Offering Documents, the substantially simultaneous closing of each Permitted Securitization Program and the availability of the Minimum Cash Balance.
(m)    Substantially concurrently with the funding of the Term Loans on the Closing Date, of the Arrangers shall have received reasonably satisfactory evidence that all Indebtedness of the Borrower and its Subsidiaries (other than Indebtedness permitted under Section 7.03) shall have been extinguished, repaid or repurchased in full, all commitments relating thereto shall have been terminated, and all liens or security interests related thereto shall have been terminated or released, in each case to the extent set forth in or contemplated by the Plan of Reorganization (as the same may be amended, supplemented, modified or waived in accordance with Section 4.01(l) above) and the Loan Documents.
(n)    The Plan of Reorganization shall have become effective and all, or substantially all, assets of the Debtors shall have vested in the reorganized Debtors as provided therein, which shall have occurred no later than May 1, 2017 (as such date may be extended at the Borrower’s election, but subject to payment of the Ticking Fee, to no later than August 1, 2017).
Notwithstanding anything to the contrary in this Section 4.01, to the extent any security interest in any of the intended Collateral is not or cannot be provided and/or perfected on the Closing Date (other than any collateral the security interest in which may be perfected by the filing of a UCC financing statement, the delivery of certificated stock certificates of U.S. Subsidiaries (except as set forth on Schedule 6.18), or the filing of IP Security Agreements (except as set forth on Schedule 6.18)) after the Loan Parties’ use of commercially reasonable efforts to do so, then the provision and/or perfection of a security interest in such Collateral will not constitute a condition precedent to the obligation of each Lender to make a Borrowing on the Closing Date but such security interest(s) will be perfected as required by Section 6.18.
Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

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4.02    Conditions to all Credit Extensions (Including on the ClosingSeventh Amendment Effective Date). The obligation of each Lender to honor any Request for Credit Extension (other than a Borrowing Notice requesting only a conversion of Loans to the other Type or a continuation of Eurocurrency Rate Loans) is subject to the following conditions precedent:
(a)    The representations and warranties of (i) the Borrower contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document required to be furnished at any time thereunder, shall be true and correct in all material respects on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, and except that for purposes of this Section 4.02 following the ClosingSeventh Amendment Effective Date, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality or by a reference to a Material Adverse Effect in the text thereof.
(b)    No Default or Event of Default shall exist, or would result immediately, from such proposed Credit Extension or the application of the proceeds thereof.
(c)    (i) The Administrative Agent and, if applicable, the applicable L/C Issuer, shall have received a Request for Credit Extension in accordance with the requirements hereof, and (ii) with respect to an L/C Credit Extension, the Administrative Agent shall have received a certificate from the Borrower certifying to compliance with the proviso to the first sentence of Section 2.03(a) after giving effect to such L/C Credit Extension.
(d)    In the case of an L/C Credit Extension to be denominated in an Alternative Currency, there shall not have occurred any Change in Law which in the reasonable opinion of the Administrative Agent or the applicable L/C Issuer would prohibit such Credit Extension to be denominated in the relevant Alternative Currency.
It is understood, for avoidance of doubt, that each Credit Extension made in connection with the effectiveness of any Incremental Facility, the proceeds of which are used to consummate a Permitted Acquisition, will be subject to the conditions set forth in clauses (a) and (b) only to the extent specified in Section 2.15(d)(i).
Each Request for Credit Extension (other than a Borrowing Notice requesting only a conversion of Loans to the other Type or a continuation of Eurocurrency Rate Loans) submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in Section 4.02(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension.

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Article V.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent, the Collateral Trustee and the Lenders that:
5.01    Existence, Qualification and Power. Each of the Borrower and its Restricted Subsidiaries (a) (i) is duly organized or formed and validly existing and (ii) is in good standing under the Laws of the jurisdiction of its incorporation or organization, if such legal concept is applicable in such jurisdiction, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, and (c) is duly qualified, licensed, and in good standing (to the extent good standing is an applicable legal concept in the relevant jurisdiction), under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except in each case referred to in clauses (a)(ii), (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
5.02    Authorization; No Contravention. The execution, delivery and performance by each Loan Party and Gibraltar Holdings of each Loan Document to which such Person is a party, (a) have been duly authorized by all necessary corporate or other organizational action and (b) do not and will not (i) contravene the terms of any of such Person’s Organizational Documents; (ii) conflict with or result in any breach or contravention of, or the creation of, any Lien (except for any Liens that may arise under the Loan Documents) under, or require any payment to be made under (A) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (B) any order, injunction, writ or decree of any Governmental Authority to which such Person or its property is subject or (C) any arbitral award to which such Person or its property is subject; or (iii) violate any Law binding on such Loan PartyPerson, except in each case referred to in clauses (b)(ii) or (b)(iii) to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
5.03    Governmental Authorization. (a) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority and (b) no material approval, consent, exemption, authorization, or other action by, or notice to, or filing with any other Person, in each case, is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party or Gibraltar Holdings of this Agreement or any other Loan Document, except for those approvals, consents, exemptions, authorizations or other actions which have already been obtained, taken, given or made and are in full force and effect.
5.04    Binding Effect. This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party and Gibraltar Holdings, as applicable, that is party thereto. This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such Loan Party and Gibraltar Holdings, as applicable, enforceable against each

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Loan Party and Gibraltar Holdings, as applicable, that is party thereto in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other Laws relating to or affecting creditors' rights generally, general principles of equity, regardless of whether considered in a proceeding in equity or at law and an implied covenant of good faith and fair dealing.
5.05    Financial Statements; No Material Adverse Effect.
(a)    The Audited Financial Statements of the Borrower and its Subsidiaries (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein and (ii) fairly present in all material respects the financial condition of the Borrower and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein.
(b)    The unaudited consolidated balance sheet of the Borrower and its Subsidiaries dated March 31, 2016,2019 and June 30, 2016 and September 30, 20162019 and the related consolidated statements of income or operations, shareholders’ equity and cash flows for the fiscal quarters ended on such dates (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present in all material respects the financial condition of the Borrower and its Subsidiaries as of such dates and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end adjustments.
(c)    Since the date of the last Audited Financial Statements, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.
(d)    The financial projections delivered pursuant to Section 4.01(a)(xiivii) were prepared in good faith on the basis of the assumptions stated therein, which assumptions were believed to be reasonable in light of the conditions existing at the time of delivery of such forecasts (it being understood that any such information is subject to significant uncertainties and contingencies, many of which are beyond the Borrower’s control, and that no assurance can be given that the future developments addressed in such information can be realized).
5.06    Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Borrower threatened, at law, in equity, by or before any Governmental Authority, by or against the Borrower or any of its Restricted Subsidiaries or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document, or any of the transactions contemplated hereby (other than the Bankruptcy Cases), or (b) except as specifically disclosed in public filings prior to the date hereof, as to which there is a reasonable possibility of an adverse determination and that could reasonably be expected to have a Material Adverse Effect.
5.07    No Default. None of the Borrower or any of its Restricted Subsidiaries is in default under or with respect to any Contractual Obligation that could reasonably be expected to have a Material Adverse Effect. No Default or Event of Default has occurred and

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is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.
5.08    Ownership and Identification of Property.
(a)    The Borrower and its Restricted Subsidiaries have good record and marketable title in fee simple to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business, except for such defects in title as could not reasonably be expected to have a Material Adverse Effect. As of the ClosingSeventh Amendment Effective Date, with respect to all real property listed on Schedule 5.08(c): (i) the Borrower and its Restricted Subsidiaries possess all leasehold interests necessary for the operation of the Mines currently being operated by each of them and included or purported to be included in the Collateral pursuant to the Security Documents, except where the failure to possess such leasehold interests could not reasonably be expected to have a Material Adverse Effect, (ii) each of their respective rights under the leases, contracts, rights-of-way and easements necessary for the operation of such Mines are in full force and effect, except to the extent that failure to maintain such leases, contracts, rights of way and easements in full force and effect could not reasonably be expected to have a Material Adverse Effect; and (iii) each of the Borrower and its Restricted Subsidiaries possesses all licenses, permits or franchises which are necessary to carry out its business as presently conducted at any Mine included or purported to be included in the Collateral pursuant to the Security Documents, except where failure to possess such licenses, permits or franchises could not, in the aggregate, be reasonably expected to have a Material Adverse Effect.
(b)    Schedule 5.08(b) lists completely and correctly as of the ClosingSeventh Amendment Effective Date all Material Real Property fee owned by the Borrower and the other Loan Parties.
(c)    Schedule 5.08(c) lists completely and correctly as of the ClosingSeventh Amendment Effective Date all Material Real Property leased by the Borrower and the other Loan Parties and the lessors thereof.
5.09    Environmental Compliance. Except as disclosed on Schedule 5.09 as of the Seventh Amendment Effective Date, or as otherwise could not reasonably be expected to have a Material Adverse Effect:
(a)    The facilities and properties currently or formerly owned, leased or operated by the Borrower, or any of its respective Restricted Subsidiaries (the “Properties”) do not contain any Hazardous Materials in amounts or concentrations which (i) constitute a violation of, or (ii) could reasonably be expected to give rise to liability under, any applicable Environmental Law.
(b)    None of the Borrower, nor any of its respective Restricted Subsidiaries has received any notice of violation, alleged violation, non-compliance, liability or potential liability regarding compliance with or liability under Environmental Laws with regard to any of the Properties or the business operated by the Borrower, or any of its Restricted Subsidiaries (the “Business”), or any prior business for which the Borrower has retained liability under any Environmental Law.
(c)    Hazardous Materials have not been transported or disposed of from the Properties in violation of, or in a manner or to a location which could reasonably be expected to give rise to

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liability under, any applicable Environmental Law, nor have any Hazardous Materials been generated, treated, stored or disposed of at, or under any of the Properties in violation of, or in a manner that could reasonably be expected to give rise to liability under, any applicable Environmental Law.
(d)    No judicial proceeding or governmental or administrative action is pending or, to the knowledge of the Borrower, threatened under any Environmental Law to which the Borrower, or any of its Restricted Subsidiaries is or, to the knowledge of the Borrower, will be named as a party or with respect to the Properties or the Business, nor are there any consent decrees or other decrees, consent orders, administrative orders or other orders, or other similar administrative or judicial requirements outstanding under any Environmental Law with respect to the Properties or the Business.
(e)    There has been no release or threat of release of Hazardous Materials at or from the Properties, or arising from or related to the operations of the Borrower, or any of its Restricted Subsidiaries in connection with the Properties or otherwise in connection with the Business, in violation of or in amounts or in a manner that could reasonably be expected to give rise to liability under any applicable Environmental Laws.
(f)    The Properties and all operations at the Properties are in compliance with all applicable Environmental Laws.
(g)    The Borrower, and each of its Restricted Subsidiaries has obtained, and is in compliance with, all Environmental Permits required for the conduct of its businesses and operations, and the ownership, occupation, operation and use of its Property, and all such Environmental Permits are in full force and effect.
5.10    Insurance.
(a)    The properties of the Borrower and its Restricted Subsidiaries are insured with financially sound and reputable insurance companies which may be Affiliates of the Borrower, in such amounts (after giving effect to any self-insurance compatible with the following standards), with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Borrower or the applicable Restricted Subsidiary operates.
(b)    As to any Building located on Material Real Property and constituting Collateral, all flood hazard insurance policies required hereunder have been obtained and remain in full force and effect, and the premiums thereon have been paid in full.
5.11    Taxes. The Borrower and its Restricted Subsidiaries have filed all applicable US Federal, state, foreign and other material tax returns and reports required to be filed, and have paid all US Federal, state, foreign and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable except (a) those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP, or (b) where failure to do any of the foregoing could not reasonably be expected to result in a Material Adverse Effect or (c) to the extent excused or

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prohibited by the Bankruptcy Code or the Bankruptcy Court; no material tax Lien has been filed which would not be permitted under Section 7.01 and, to the knowledge of the Borrower, no material claim is being asserted, with respect to any material tax, fee or other charge which could reasonably be expected to result in a Material Adverse Effect.
5.12    ERISA Compliance. Except as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect:
(a)    Each Plan is in material compliance in all respects with the applicable provisions of ERISA, the Code and other Federal or state Laws (except that with respect to any Multiemployer Plan which is a Plan, such representation is deemed made only to the knowledge of the Borrower), and each Foreign Plan is in material compliance in all respects with the applicable provisions of Laws applicable to such Foreign Plan.
(b)    There has been no nonexemptnon-exempt “prohibited transaction” (as defineddescribed in Section 406 of ERISA or Section 4975 of the Code) or violation of the fiduciary responsibility rules with respect to any Plan.
(c)    (i) As of the Closing Date, noNo ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability; and (iii) neither the Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or 4212(c) of ERISA.
5.13    Subsidiaries. As of the ClosingSeventh Amendment Effective Date, the Borrower has no Subsidiaries other than those specifically disclosed in Schedule 5.13.
5.14    Margin Regulations; Investment Company Act.
(a)    The Borrower is not engaged and will not engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock.
(b)    None of the Borrower, any Person Controlling the Borrower, nor any Restricted Subsidiary is or is required to be registered as an “investment company” under the Investment Company Act of 1940.
5.15    Disclosure. (a) No report, financial statement, certificate or other information furnished in writing by any Loan Party or Gibraltar Holdings to the Administrative Agent, the Collateral Trustee or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document, taken as whole with any other information furnished or publicly available, contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not materially misleading as of the date when made or delivered; provided that, with respect to any forecast, projection or other statement regarding future performance, future financial results or other future developments, the Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time of delivery of such

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information (it being understood that any such information is subject to significant uncertainties and contingencies, many of which are beyond the Borrower’s control, and that no assurance can be given that the future developments addressed in such information can be realized).
(b)    As of the Seventh Amendment Effective Date, to the best knowledge of the Borrower, the information included in the Beneficial Ownership Certification provided on or prior to the Seventh Amendment Effective Date (if any) to any Lender in connection with this Agreement is true and correct in all respects.
5.16    Compliance with Laws. The Borrower and each Restricted Subsidiary is in compliance in all material respects with the requirements of all Laws (including any zoning, building, ordinance, code or approval or any building or mining permits and all orders, writs, injunctions and decrees applicable to it or to its properties), except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.
5.17    Anti-Corruption; Sanctions; Terrorism Laws.
(a)    None of the Borrower, any Restricted Subsidiary nor, to the knowledge of the Borrower, any director, officer, agent, employee or Affiliate of the Borrower or any Restricted Subsidiary is (i) a person on the list of “Specially Designated Nationals and Blocked Persons” or (ii) subject of any active sanctions administered or enforced by the U.S. Department of State or the U.S. Department of Treasury (including the Office of Foreign Assets Control) or any other applicable governmental authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Laws”); and the Borrower will not directly or, to the knowledge of the Borrower, indirectly use the proceeds of the Loans for the purpose of financing the activities of any Person that is the subject of, or in any country or territory that at such time is the subject of, any Sanctions.
(b)    The Borrower and each Restricted Subsidiary is in compliance, in all material respects, with the (i) Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, (ii) the USA PATRIOT Act (Title III of Pub. L. 107-56), as amended (the “PATRIOT Act”), (iii) Sanctions Laws and (iv) Anti-Corruption Laws.
(c)    No part of the proceeds of any Loan will be used, directly or, to the knowledge of the Borrower, indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations and orders (collectively, “Anti-Corruption Laws”).

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5.18    Intellectual Property; Licenses, Etc. The Borrower and its Restricted Subsidiaries own, or possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights (collectively, “IP Rights”) that are reasonably necessary for the operation of their respective businesses, except where the failure to own or possess the right to use such IP Rights could not reasonably be expected to have a Material Adverse Effect. To the best knowledge of the Borrower, the use of such IP Rights by the Borrower or any Restricted Subsidiary does not infringe upon any rights held by any other Person except for any infringement that could not reasonably be expected to have a Material Adverse Effect. Except as specifically disclosed in Schedule 5.18 as of the Seventh Amendment Effective Date, no claim or litigation regarding any of the foregoing is pending or, to the best knowledge of the Borrower, threatened, which could reasonably be expected to have a Material Adverse Effect.
5.19    Security Documents.
(a)    (i) Each Security Document (other than each Mortgage), when executed and delivered, is effective to create in favor of the Collateral Trustee (for the benefit of the Secured Parties), a legal, valid and enforceable security interest in the Collateral described therein and the Collateral Trustee has been authorized (and is hereby authorized) to make all filings of UCC-1 and as-extracted collateral financing statements in the appropriate filing office necessary or desirable to fully perfect the Collateral Trustee’s security interest in such Collateral described therein which can be perfected by filing a UCC-1 financing statement in the appropriate filing office, or in the case of the Gibraltar Pledge Agreement, by registering the Gibraltar Pledge Agreement at Companies House Gibraltar within 30 days following the Closing Date, and (ii) with respect to the security interest created in the Collateral pursuant to each Security Document (other than each Mortgage), upon such filings (or, with respect to possessory Collateral, upon the taking of possession by the Collateral Trustee (or by the ABL Agent as bailee for the Collateral Trustee pursuant to the ABL Intercreditor Agreement, if applicable) of any such Collateral which may be perfected by possession), such security interests will constitute perfected First Priority Liens on, and security interests in, all right, title and interest of the debtor party thereto in the Collateral described therein that can be perfected by filing a UCC-1 or as-extracted financing statement, as applicable, in the appropriate filing office or by delivery, in the case of possessory Collateral.
(b)    Each of the Mortgages, when executed and delivered, will be effective to create in favor of the Collateral Trustee, for the ratable benefit of the Secured Parties, a legal, valid and enforceable lien on the Material Real Property described therein and such security interests will constitute, upon such Mortgage being and recorded in the appropriate filing offices, First Priority liens on such Material Real Property.
5.20    Mines. Schedule 5.20 sets forth a complete and accurate list of all Mines (including addresses and the owner thereof) owned or operated by the Borrower or any of its Restricted Subsidiaries as of the ClosingSeventh Amendment Effective Date and included or purported to be included in the Collateral pursuant to the Security Documents.
5.21    Solvency. The Borrower and its Restricted Subsidiaries are and, upon the incurrence of any Obligation by any Loan Party on any date on which this representation and warranty is made, will be, on a consolidated basis, Solvent.

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5.22    Labor Relations. Neither the Borrower nor any of its Restricted Subsidiaries is engaged in any unfair labor practice that could reasonably be expected to have a Material Adverse Effect. There is (a) no unfair labor practice complaint pending against the Borrower or any of its Restricted Subsidiaries, or to the best knowledge of the Borrower, threatened against any of them before the National Labor Relations Board and no grievance or arbitration proceeding arising out of or under any collective bargaining agreement that is so pending against the Borrower or any of its Restricted Subsidiaries or to the best knowledge of the Borrower, threatened against any of them, (b) no strike or work stoppage in existence or threatened involving the Borrower or any of its Restricted Subsidiaries, and (c) to the best knowledge of the Borrower, no union representation question existing with respect to the employees of the Borrower or any of its Restricted Subsidiaries and, to the best knowledge of the Borrower, no union organization activity that is taking place, except (with respect to any matter specified in clause (a), (b) or (c) above, either individually or in the aggregate) such as is not reasonably likely to have a Material Adverse Effect.
Article VI.
AFFIRMATIVE COVENANTS
Until Payment in Full, the Borrower shall, and shall cause each of its respective Restricted Subsidiaries to:
6.01    Financial Statements. Deliver to the Administrative Agent and each Lender, in form and detail reasonably satisfactory to the Administrative Agent:
(a)    as soon as available, but in any event within 90 days after the end of each fiscal year of the Borrower (commencing with the fiscal year ended December 31, 2017) a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, changes in shareholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP; such consolidated statements shall be audited and accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit (other than with respect to or resulting from the upcoming maturity of any Loans under this Agreement, the Priority Lien Notes Documents, or any documents evidencing a Permitted Securitization Program or the ABL Credit Documents, occurring within one year from the time such opinion is delivered); and
(b)    as soon as available, but in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower (commencing with the fiscal quarter ended June 30, 2017), a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of income or operations, changes in shareholders’ equity and cash flows for such fiscal quarter and for the portion of the Borrower’s fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail; such consolidated statements shall be certified by a

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Responsible Officer of the Borrower as fairly presenting in all material respects the financial condition, results of operations, changes in shareholders’ equity and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes.
6.02    Certificates; Other Information. Deliver to the Administrative Agent, in form and detail reasonably satisfactory to the Administrative Agent:
(a)    concurrently with the delivery of the financial statements referred to in Section 6.01(a), a certificate of its independent certified public accountants reporting on such financial statements stating that in performing their audit nothing came to their attention that caused them to believe the Borrower failed to comply with the financial covenant set forth in Section 7.11, except as specified in such certificate;
(b)    concurrently with the delivery of the financial statements referred to in Section 6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal quarter ended June 30, 2017), (i) a duly completed Compliance Certificate signed by a Responsible Officer of the Borrower and (ii) a reconciliation of such financial statements for the Borrower and its Restricted Subsidiaries; provided, that, for the avoidance of doubt, any such reconciliation of the financial statements referred to in Section 6.01(a) shall not be audited;
(c)    promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the Borrower, and copies of all annual, regular, periodic and special reports and registration statements which the Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d)    promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request; and
(e)    not later than 60 days after the end of each fiscal year of the Borrower, a copy of summary projections by the Borrower of the operating budget and cash flow budget of the Borrower and its Subsidiaries for the succeeding fiscal year, such projections to be accompanied by a certificate of a Responsible Officer to the effect that such projections have been prepared based on assumptions believed by the Borrower to be reasonable (it being understood that any such information is subject to significant uncertainties and contingencies, many of which are beyond the Borrower’s control, and that no assurance can be given that the future developments addressed in such information can be realized).
Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 10.02; (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to

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which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); or (iii) on which such documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval system.
The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a “Public Lender”). The Borrower hereby agrees that so long as the Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (a) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (b) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers, the L/C Issuer and the Lenders to treat the Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent the Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07); and (c) all Borrower Materials marked “PUBLIC” or not marked as containing material non-public information are permitted to be made available through a portion of the Platform designated “Public Investor.” Notwithstanding the foregoing, the Borrower shall not be under any obligation to mark the Borrower Materials “PUBLIC” or as containing material non-public information. In connection with the foregoing, each party hereto acknowledges and agrees that the foregoing provisions are not in derogation of their confidentiality obligations under Section 10.07.
6.03    Notices. Notify the Administrative Agent:
(a)    promptly, of the occurrence of any Default or Event of Default hereunder or the occurrence of any “Default” or “Event of Default” under the Priority Lien Notes Documents or the ABL Credit Documents;
(b)    promptly, of any event which could reasonably be expected to have a Material Adverse Effect;
(c)    of the occurrence of any ERISA Event that, individually or in the aggregate, would be reasonably likely to have a Material Adverse Effect, as soon as possible and in any event within 30 days after the Borrower knows or has obtained notice thereof;
(d)    within 15 days of the Borrower or any Guarantor (or Peabody Investments (Gibraltar) Limited) changing its legal name, jurisdiction of organization or the location of its chief executive office or sole place of business;

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(e)    to the extent that there will be a cancellation or material reduction in amount or material change in coverage for any insurance maintained by the Borrower or any Guarantor, at least 10 days prior to such cancellation, reduction or change; and
(f)    promptly, as to any Building located on Material Real Property and constituting Collateral, any redesignation of any such property on which such Building is located into or out of a special flood hazard area.; and
(g)    any change in the information provided in the Beneficial Ownership Certification (if any) delivered to the Administrative Agent that would result in a change to the list of beneficial owners identified in such certification.
Each notice pursuant to clauses (a)-(c) of this Section shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action the Borrower has taken and proposes to take with respect thereto.
6.04    Payment of Tax Obligations. Except where failure to do so could not reasonably be expected to result in a Material Adverse Effect, with respect to the Borrower and each of its Restricted Subsidiaries, pay and discharge all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by the Borrower or such Restricted Subsidiary.
6.05    Preservation of Existence. Preserve, renew and maintain in full force and effect its legal existence except in a transaction permitted by SectionSections 7.04 or 7.18.
6.06    Maintenance of Properties. (a) Maintain, preserve and protect all of its material properties and material equipment, including Collateral, necessary in the operation of its business in good working order and condition (ordinary wear and tear and damage by fire or other casualty or taking by condemnation excepted), except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
(b)    Keep in full force and effect all of its material leases and other material contract rights, and all material rights of way, easements and privileges necessary or appropriate for the proper operation of the Mines being operated by the Borrower or a Restricted Subsidiary and included or purported to be included in the Collateral by the Security Documents, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
6.07    Maintenance of Insurance. (a) Maintain with financially sound and reputable insurance companies which may be Affiliates of the Borrower, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts (after giving effect to any self-insurance compatible with the following standards) as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Borrower or the applicable Restricted Subsidiary operates, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect.

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(b)    With respect to any Building located on Material Real Property and constituting Collateral, the Borrower shall and shall cause each appropriate Loan Party to (i) maintain fully paid flood hazard insurance on any such Building that is located in a special flood hazard area, on such terms and in such amounts as required by The National Flood Insurance Reform Act of 1994 and (ii) furnish to the Administrative Agent an insurance certificate evidencing the renewal (and payment of renewal premiums therefor) of all such policies prior to the expiration or lapse thereof (or at such other time acceptable to the Administrative Agent). The Borrower shall cooperate with the Administrative Agent’s reasonable request for any information reasonably required by the Administrative Agent to comply with The National Flood Insurance Reform Act of 1994, as amended.
6.08    Compliance with Laws. Comply in all respects with the requirements of all Laws (including the PATRIOT Act, Sanctions Laws, the Anti-Corruption Laws and Environmental Laws) and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) such requirement of law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (or, in the case of compliance with the PATRIOT Act, Sanctions Laws and the Anti-Corruption Laws, the failure to comply therewith is not material).
6.09    Books and Records. (a) Maintain proper books of record and account, in which in all material respects full, true and correct entries in conformity with GAAP shall be made of all material financial transactions and matters involving the assets and business of the Borrower or such Restricted Subsidiary, as the case may be; and (b) maintain such books of record and account in material conformity with all material requirements of any Governmental Authority having regulatory jurisdiction over the Borrower or such Restricted Subsidiary, as the case may be.
6.10    Inspection Rights. Permit representatives and independent contractors of the Administrative Agent and each Lender to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom (except to the extent (a) any such access is restricted by a Requirement of Law or (b) any such agreements, contracts or the like are subject to a written confidentiality agreement with a non-Affiliate that prohibits the Borrower or any of its Subsidiaries from granting such access to the Administrative Agent or the Lenders; provided that, with respect to such confidentiality restrictions affecting the Borrower or any of its Restricted Subsidiaries, a Responsible Officer is made available to such Lender to discuss such confidential information to the extent permitted), and to discuss the business, finances and accounts with its officers and independent public accountants at such reasonable times during normal business hours and as often as may be reasonably desired, provided that the Administrative Agent or such Lender shall give the Borrower reasonable advance notice prior to any contact with such accountants and give the Borrower the opportunity to participate in such discussions, provided further that the costs of one such visit per calendar year (or an unlimited amount if an Event of Default has occurred and is continuing) for the Administrative Agent, the Lenders and their representatives as a group shall be the responsibility of the Borrower.

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6.11    Use of Proceeds. Use the proceeds of (a) the Term Loan Facility made available on the Closing Date (i) on the Closing Date, to refinance indebtedness under the Existingthat certain Credit Agreement and to pay the Transaction Costs, (ii) after , dated September 24, 2013, by and among the Borrower, Citibank, N.A., as administrative agent, and the lenders party thereto (as amended by that certain Omnibus Amendment, dated as of February 5, 2015 and as otherwise amended, restated, supplemented or otherwise modified) and to pay fees and expenses in connection with the transactions consummated on the Closing Date, for ongoing working capital, capital expenditures and for other lawful corporate purposes of the Borrower and its Subsidiaries, including for acquisitions and (iii) to make distributions to certain holders of claims in accordance with the Plan of Reorganization, (b) the Additional Refinancing Term Loans (as defined in the First Amendment) made on the First Amendment Effective Date shall be used to prepay in full the principal amount of all Existing Term Loans (as defined in the First Amendment), other than the Exchanged Term Loans (as defined in the First Amendment), (c) the Additional Refinancing Term Loans (as defined in the Fourth Amendment) made on the Fourth Amendment Effective Date shall be used to prepay in full the principal amount of all Existing Term Loans (as defined in the Fourth Amendment), other than the Exchanged Term Loans (as defined in the Fourth Amendment) and (d) the Incremental Revolving Facilities for ongoing working capital, capital expenditures and for other lawful corporate purposes of the Borrower and its Subsidiaries, including for acquisitions, and for the issuance of Letters of Credit for the accounts of the Borrower or any of its Restricted Subsidiaries.
6.12    Additional Guarantors. As of the date the Compliance Certificate referred to in Section 6.02 is required to be delivered, notify the Administrative Agent of any Restricted Subsidiary that is not a Guarantor and, by virtue of the definition of Guarantor would be required to be a Guarantor. Within 30 days of such notification, the Borrower shall cause any such Restricted Subsidiary to become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty or such other document as the Administrative Agent shall deem appropriate for such purpose.
6.13    Unrestricted Subsidiaries. Subject to the exclusions in the proviso in the definition of “Unrestricted Subsidiary”, any Restricted Subsidiary may be designated as an Unrestricted Subsidiary and any Unrestricted Subsidiary may be designated as a Restricted Subsidiary upon delivery to the Administrative Agent of written notice from the Borrower; provided that (a) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing, (b) other than for purposes of designating a Restricted Subsidiary as an Unrestricted Subsidiary in connection with a Permitted Securitization Program, immediately after giving effect to such designation, on a Pro Forma Basis, the Total Leverage Ratio shall be equal to or less than 2.50:1.00, (c) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” for purposes of any of the Priority Lien Notes Documents, the ABL Credit Documents or any documents evidencing any Permitted Refinancing Indebtedness or any Subordinated Indebtedness and (d) each Restricted Subsidiary to be designated as an Unrestricted Subsidiary and its Subsidiaries has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness other than Non-Recourse Debt. The designation of any Restricted Subsidiary as an Unrestricted Subsidiary shall constitute an Investment under Section 7.02 by the Borrower therein at the

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date of designation in an amount equal to the net book value of the Borrower’s investment therein. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness or Liens of such Restricted Subsidiary existing at such time.
6.14    Preparation of Environmental Reports. If an Event of Default caused by reason of a breach under Sections 6.08 or 5.09 with respect to compliance with Environmental Laws shall have occurred and be continuing, at the reasonable request of the Required Lenders through the Administrative Agent, provide, in the case of the Borrower, to the Lenders within 60 days after such request, at the expense of the Borrower, an environmental or mining site assessment or audit report for the Properties which are the subject of such default prepared by an environmental or mining consulting firm reasonably acceptable to the Administrative Agent and indicating the presence or absence of Hazardous Materials and the estimated cost of any compliance or remedial action in connection with such Properties and the estimated cost of curing any violation or non-compliance of any Environmental Law.
6.15    Certain Long Term Liabilities and Environmental Reserves. To the extent required by GAAP, maintain adequate reserves for (a) 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, (b) future costs associated with retiree and health care benefits, (c) future costs associated with reclamation of disturbed acreage, removal of facilities and other closing costs in connection with closing its mining operations and (d) future costs associated with other potential environmental liabilities.
6.16    Covenant to Give Security.
(a)    Personal Property including IP of New Guarantors. Concurrently with any Restricted Subsidiary becoming a Guarantor pursuant to Section 6.12 (or a later date to which the Administrative Agent agrees), cause any such Restricted Subsidiary to (i) duly execute and deliver to the Collateral Trustee counterparts to the Security Agreement or such other document as the Administrative Agent or the Collateral Trustee shall reasonably deem appropriate for such purpose, (ii) to the extent that any Capital Stock in, or owned by, such Restricted Subsidiary is required to be pledged pursuant to the Security Agreement or the Gibraltar Pledge Agreement, deliver stock certificates, if any, representing such Capital Stock accompanied by undated stock powers or instruments of transfer executed in blank, (iii) to the extent that any Intellectual Property (as defined in the Security Agreement) owned by a Loan Party is required to be pledged pursuant to the Security Agreement but has not been pledged, deliver any supplements to the IP Security Agreements reasonably requested by the Administrative Agent or the Collateral Trustee and (iv) comply with all other requirements of the Security Agreement with respect to the Collateral of such Guarantor.
(b)    Real Property of New Guarantors.
(i)    New Real Property Identification. With respect to any Restricted Subsidiary becoming a Guarantor pursuant to Section 6.12, concurrently with such Restricted Subsidiary becoming a Guarantor (or a later date to which the Administrative Agent agrees),

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furnish to the Administrative Agent a description of all Material Real Property fee owned or leased by such Restricted Subsidiary.
(ii)    Material Real Property Mortgages and Flood Insurance. With respect to any Restricted Subsidiary becoming a Guarantor pursuant to Section 6.12, within the latest of (x) 90 days of such Restricted Subsidiary becoming a Guarantor and (y) a later date to which the Administrative Agent agrees, cause such Restricted Subsidiary to deliver (A) executed counterparts of one or more Mortgages on its Material Real Property in a form appropriate for recording in the applicable recording office, (B) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Building located on such Material Real Property and constituting Collateral and, if any such Building is located in special flood hazard area, (1) a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Loan Party relating thereto and (2) evidence of applicable flood insurance as required by Section 6.07(b)(i) if such Material Real Property constitutes Collateral, (C) legal opinions from counsel in such jurisdiction as the Material Real Property is located, each in form and substance reasonably satisfactory to Administrative Agent or the Collateral Trustee, (D) to the extent required by the Administrative Agent, evidence of the filing of as-extracted UCC-1 financing statements in the appropriate jurisdiction and (E) payment by the Borrower of all mortgage recording taxes and related charges required for the recording of such Mortgages.
(iii)    Consents Related to Leaseholds Concerning Material Real Property. With respect to any leasehold interest of any Restricted Subsidiary becoming a Guarantor pursuant to Section 6.12 that would constitute Material Real Property but for the need to obtain the consent of another Person (other than the Borrower or any Controlled Subsidiary) in order to grant a security interest therein, use commercially reasonable efforts to obtain such consent for the later of (x)within the 120 day period commencing after such entity becomes a Guarantor and (y) 225 days after the Closing Date, provided that there shall be no requirement to pay any sums to the applicable lessor other than customary legal fees and administrative expenses (it is understood, for avoidance of doubt, that, without limiting the foregoing obligations of the Borrower set forth in this Section 6.16(b)(iii), any failure to grant a security interest in any such leasehold interest as a result of a failure to obtain a consent shall not be a Default hereunder, and, for avoidance of doubt, the Borrower and its Restricted Subsidiaries shall no longer be required to use commercially reasonable efforts to obtain any such consent after such above-mentioned time period to obtain a consent has elapsed); provided further, it is understood that no such actions under this Section 6.16(b)(iii) shall be required for any such Material Real Property leased by a Loan Party as of the Seventh Amendment Effective Date.
(c)    Personal Property (including IP) Acquired by Borrower or Guarantors. Within the applicable time period set forth in the Security Agreement, shall, in the case of the Borrower, or cause any such Restricted Subsidiary otherwise, (i) to the extent that any Capital Stock in, or owned by, a Loan Party or Gibraltar Holdings is required to be pledged pursuant to the Security Agreement or the Gibraltar Pledge Agreement but has not been pledged, deliver stock certificates, if any, representing such Capital Stock accompanied by undated stock powers or instruments of transfer executed in blank to the Collateral Trustee and execute and deliver to the Collateral Trustee supplements to the Security Agreement, the Gibraltar Pledge Agreement or such other document as the Administrative Agent shall reasonably deem appropriate to pledge any such

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Capital Stock, (ii) to the extent that any Intellectual Property (as defined in the Security Agreement) owned by a Loan Party is required to be pledged pursuant to the Security Agreement but has not been pledged, deliver any supplements to the IP Security Agreements reasonably requested by the Administrative Agent and (iii) to the extent that a Lien on any asset of a Loan Party is required to be perfected pursuant to the Security Agreement but has not been perfected, take such additional actions as may be required pursuant to the Security Agreement in order to perfect the Lien of the Collateral Trustee on such asset.
(d)    Real Property Acquired by Borrower and Guarantors.
(i)     New Real Property Identification. As of the date the Compliance Certificate referred to in Section 6.02 is required to be delivered (or a later date to which the Administrative Agent agrees), with respect to each Loan Party, notify the Administrative Agent the acquisition of any Material Real Property fee owned or leased by such Loan Party.
(ii)    Material Real Property Mortgages and Supplements. Within the latest of (x) 90 days of the notification provided pursuant to Section 6.16(d)(i) (or a later date to which the Administrative Agent agrees), (y) 90 days after the ClosingSeventh Amendment Effective Date and (z) a later date to which the Administrative Agent agrees, cause such Loan Party to deliver the materials set forth in Section 6.16(b)(ii) with respect any such newly acquired Material Real Property, unless, in the judgment of the Administrative Agent, delivery of such materials is unnecessary to ensure the Secured Parties benefit from a perfected First Priority security interest in such Material Real Property in favor of the Collateral Trustee and such flood insurance (it is understood that in lieu of any new Mortgage, mortgage supplements or any other security documents may be delivered if reasonably acceptable to the Administrative Agent).
(iii)    Consents Related to Leaseholds Concerning Material Real Property. With respect to the acquisition of any leasehold interest by any Restricted Subsidiary that would constitute Material Real Property but for the need to obtain the consent of another Person (other than the Borrower or any Controlled Subsidiary) in order to grant a security interest therein, use commercially reasonable efforts to obtain such consent for the later of (x)within the 120 day period commencing on the date of the notification provided pursuant to Section 6.16(d)(i)and (y) 225 days after the Closing Date,, provided that there shall be no requirement to pay any sums to the applicable lessor other than customary legal fees and administrative expenses (it is understood, for avoidance of doubt, that, without limiting the foregoing obligations of the Borrower set forth in this Section 6.16(d)(iii), any failure to grant a security interest in any such leasehold interest as a result of a failure to obtain a consent shall not be a Default hereunder, and, for avoidance of doubt, the Borrower and its Restricted Subsidiaries shall no longer be required to use commercially reasonable efforts to obtain any such consent after such above-mentioned time period to obtain a consent has elapsed); provided further, it is understood that no such actions under this Section 6.16(d)(iii) shall be required for any such Material Real Property leased by a Loan Party as of the Seventh Amendment Effective Date..
(e)    Further Assurances. Subject to any applicable limitation in any Security Documents, upon request of the Administrative Agent, at the expense of the Borrower, promptly execute and deliver any and all further instruments and documents and take all such other action as the Administrative Agent may deem necessary or desirable in obtaining the full benefits of, or (as

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applicable) in perfecting and preserving the Liens of, the Security Documents, including the filing of financing statements necessary or advisable in the opinion of the Administrative Agent or the Collateral Trustee to perfect any security interests created under the Security Documents. Notwithstanding anything herein or in any other Security Document to the contrary, Administrative Agent is hereby authorized to deliver additional directions in writing to the Collateral Trustee from time to time (it being agreed that each such direction shall constitute an Act of Required Secured Parties under the Collateral Trust Agreement, and, by its execution hereof, Lenders constituting Required Lenders shall be deemed to have provided written consent to each such direction) authorizing and directing the Collateral Trustee to execute additional Security Documents and amendments thereto (in each case, covering additional or new property or assets, as determined in the Administrative Agent’s sole discretion).
(f)    Collateral Principles. Notwithstanding anything to the contrary in any Loan Document, (i) except as contemplated by the Gibraltar Pledge Agreement or with respect to the pledge of intercompany loans (including the PIC Intercompany Note), no actions in any non-U.S. jurisdiction or required by the Requirement of Law of any non-U.S. jurisdiction shall be required in order to create any security interests in assets located or titled outside of the U.S. (it being understood that, except for the Gibraltar Pledge Agreement, there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction), (ii) the Administrative Agent in its discretion may grant extensions of time for the creation or perfection of security interests in, and Mortgages on, or taking other actions with respect to, particular assets where it reasonably determines in consultation with the Borrower, that the creation or perfection of security interests and Mortgages on, or taking other actions, cannot be accomplished without undue delay, burden or expense by the time or times at which it would otherwise be required by this Agreement or the Security Documents and (iii) any Liens required to be granted from time to time pursuant to Security Documents and this Agreement on assets of the Loan Parties or Gibraltar Holdings to secure to the Secured Obligations shall exclude the Excluded Assets.
(g)    Junior Lien Indebtedness Guarantees and Collateral. Without limitation of (and subject to) any provision in the Collateral Trust Agreement, if the Junior Collateral Trustee or any holder of Junior Lien Indebtedness receive any additional guaranty or any additional collateral in connection with the Junior Lien Indebtedness after the ClosingSeventh Amendment Effective Date, without limitation of any Event of Default that may arise as a result thereof, the Loan Parties shall, concurrently therewith, cause the same to be granted to the Administrative Agent or the Collateral Trustee, as applicable, for its own benefit and the benefit of the Secured Parties.
6.17    Maintenance of Ratings. Use commercially reasonable efforts to maintain (i) a public corporate family rating issued by Moody’s and a public corporate credit rating issued by S&P and (ii) a public credit rating from each of Moody’s and S&P with respect to the Term Loans.
6.18    Post Closing Covenants. Cause to be delivered or performed the documents and other agreements and actions set forth on Schedule 6.18 within the time frame specified on such Schedule 6.18.

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6.19    ERISA. Except, in each case, to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect, comply with the provisions of ERISA, the Code, and other Laws applicable to the Plans.
Article VII.
NEGATIVE COVENANTS
Until Payment in Full, the Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly:
7.01    Liens. Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following:
(a)    Liens pursuant to any Loan Document;
(b)    Liens existing on the date hereofSeventh Amendment Effective Date and (other than any individual Lien that secures obligations of less than $2,000,000) set forth on Schedule 7.01 and any renewals, extensions, modifications, restatements or replacements thereof, provided that (i) the property covered thereby is not changed, (ii) the amount secured or benefited thereby is not increased except with respect to any Permitted Refinancing Increase and (iii) any renewal, extension, modification, restatement or replacement of the obligations secured or benefited thereby is permitted by Section 7.03;
(c)    Liens for taxes not yet due or which are being contested in good faith and by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d)    landlord’s, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 60 days or which are being contested in good faith and by appropriate proceedings;
(e)    pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation and employee health and disability benefit legislations and deposits securing liability to insurance carriers under insurance or self-insurance arrangements;
(f)    (i) Liens (including deposits) to secure the performance of bids, trade contracts and leases (other than Indebtedness), reclamation bonds, insurance bonds, statutory obligations, surety and appeal bonds, performance bonds, bank guarantees and letters of credit and other obligations of a like nature incurred in the ordinary course of business, (ii) Liens on assets to secure obligations under surety bonds obtained as required in connection with the entering into of federal coal leases or (iii) Liens created under or by any turnover trust;
(g)    easements, rights-of-way, zoning restrictions, other restrictions and other similar encumbrances which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;

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(h)    Liens securing attachments or judgments for the payment of money not constituting an Event of Default under Section 8.01(h) or securing appeal or surety bonds related to such attachments or judgments;
(i)    Liens securing Indebtedness of the Borrower and its Restricted Subsidiaries permitted by Section 7.03(k); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness, any other property which may be incorporated with or into that financed property or any after-acquired title in or on such property and proceeds of the existing collateral in accordance with the instrument creating such Lien, including replacement parts, accessories or enhancements that are affixed to any leased goods and (ii) the principal amount of Indebtedness secured by any such Lien shall at no time exceed 100% of the original purchase price of such property at the time it was acquired (it being understood that Liens of the type described in this subsection (i) incurred by a Restricted Subsidiary before such time as it became a Restricted Subsidiary are permitted under this subsection (i));
(j)    Liens on property or assets acquired in a transaction permitted by Section 7.02 or of a Person which becomes a Restricted Subsidiary after the date hereof; provided that (i) such Liens existed at the time such property or assets were acquired or such entity became a Subsidiary and were not created in anticipation thereof, (ii) such Liens do not extend to any other property or assets of such Person (other than the proceeds of the property or assets initially subject to such Lien) or of the Borrower or any Restricted Subsidiary and (iii) the amount of Indebtedness secured thereby is not increased;
(k)    Liens on the property of the Borrower or any of its Subsidiaries, as a tenant under a lease or sublease entered into in the ordinary course of business by such Person, in favor of the landlord under such lease or sublease, securing the tenant’s performance under such lease or sublease, as such Liens are provided to the landlord under applicable law and not waived by the landlord;
(l)    Liens (including those arising from precautionary UCC financing statement filings and those which are security interests for purposes of the Personal Property Securities Act of 2009 (Cth)) with respect to bailments, operating leases or consignment or retention of title arrangements entered into by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(m)    Liens securing Indebtedness permitted under Section 7.03(c), to the extent that the Indebtedness being refinanced was originally secured in accordance with this Section 7.01, provided that such Lien does not apply to any additional property or assets of the Borrower or any Restricted Subsidiary (other than property or assets within the scope of the original granting clause or the proceeds of the property or assets subject to such Lien);
(n)    Liens securing Indebtedness or other obligations of a non-Guarantor Restricted Subsidiary to the Borrower or a Guarantor;
(o)    leases, subleases, licenses and rights-of-use granted to others incurred in the ordinary course of business and that do not materially and adversely affect the use of the property encumbered thereby for its intended purpose;

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(p)    (i) Liens in favor of a banking institution arising by operation of law or any contract encumbering deposits (including the right of set-off) held by such banking institutions incurred in the ordinary course of business and which are within the general parameters customary in the banking industry or (ii) contractual rights of setoff to the extent constituting Liens;
(q)    Liens on Capital Stock of any Unrestricted Subsidiary, solely to the extent such Capital Stock does not constitute Collateral;
(r)    Liens on Receivables Assets pursuant to any Permitted Securitization Programs or under any other agreement under which such receivables or rights are transferred in a manner permitted hereunder (to the extent, in each case, that any such Disposition of receivables is deemed to give rise to a Lien);
(s)    Liens in favor of an escrow agent arising under an escrow arrangement incurred in connection with the issuance of notes with respect to the proceeds of such notes and anticipated interest expenses with respect to such notes;
(t)    Liens securing Incremental NotesEquivalent Debt, Refinancing NotesDebt or Permitted Refinancing Indebtedness of the foregoing; provided that (i) such Liens rank junior or pari passu with the Liens securing the Secured Obligations pursuant to the Security Documents, (ii) the rights of the holders of the Incremental NotesEquivalent Debt, Refinancing NotesDebt or such Permitted Refinancing Indebtedness are subject to the Collateral Trust Agreement with respect to such Liens, (iii) such Liens encumber only the assets, or a subset of the assets, that secure the Secured Obligations and (iv) for the avoidance of doubt, Liens shall only be permitted under this Section 7.01(t) to the extent that the Incremental NotesEquivalent Debt, Refinancing NotesDebt or Permitted Refinancing Indebtedness are permitted to be secured under Section 7.03;
(u)    Permitted Real Estate Encumbrances;
(v)    [reserved];
(w)    subject to the Collateral Trust Agreement, Liens on the Collateral in favor of the Collateral Trustee for the benefit of holders of Priority Lien Notes Indebtedness securing the Priority Lien Notes Indebtedness permitted pursuant to Section 7.03(o);
(x)    Liens on assets of Foreign Subsidiaries securing Indebtedness of Foreign Subsidiaries;
(y)    other Liens securing Indebtedness or obligations of the Loan Parties in an aggregate amount at any time outstanding not to exceed $75,000,000;
(z)    prior to the incurrence of any Incremental Revolving Commitments, Liens on assets securing any ABL Facility to the extent such Liens are subject to an ABL Intercreditor Agreement[reserved]; and
(aa)    (x) Production Payments, royalties, dedication of reserves under supply agreements or similar or related rights or interests granted, taken subject to, or otherwise imposed on properties or (y) cross charges, Liens or security arrangements entered into in respect of a Joint Venture for

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the benefit of a participant, manager or operator of such Joint Venture, in each case, consistent with normal practices in the mining industry.
7.02    Investments. Make any Investments, except:
(a)    Investments held by the Borrower or such Restricted Subsidiary in the form of cash or Cash Equivalents;
(b)    advances to officers, directors and employees of the Borrower and Subsidiaries in an aggregate amount not to exceed $5,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes;
(c)    Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;
(d)    Investments (including debt obligations and Capital Stock) received in satisfaction of judgments or in connection with the bankruptcy or reorganization of suppliers and customers of the Borrower and its Restricted Subsidiaries and in settlement of delinquent obligations of, and other disputes with, such customers and suppliers arising in the ordinary course of business;
(e)    (i) Investments in the nature of Production Payments, royalties, dedication of reserves under supply agreements or similar or related rights or interests granted, taken subject to, or otherwise imposed on properties, (ii) cross charges, Liens or security arrangements entered into in respect of a Joint Venture for the benefit of a participant, manager or operator of such Joint Venture or (iii) payments or other arrangements whereby the Borrower or a Restricted Subsidiary provides a loan, advance payment or guarantee in return for future coal deliveries, in each case consistent with normal practices in the mining industry;
(f)    Investments in existence on the ClosingSeventh Amendment Effective Date and (other than individual Investments the amount of which is less than $2,000,000) listed on Schedule 7.02 and extensions, renewals, modifications, restatements or replacements thereof; provided that no such extension, renewal, modification, restatement or replacement shall increase the amount of such Investment except, in the case of a loan, by an amount equal to any Permitted Refinancing Increase;
(g)    (i) promissory notes and other similar non-cash consideration received by the Borrower and its Subsidiaries in connection with Dispositions not otherwise prohibited under this Agreement and (ii) Investments received in compromise or resolution of (A) obligations of trade creditors or customers that were incurred in the ordinary course of business of the Borrower and its Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer, (B) litigation, arbitration or other disputes or (C) the foreclosure with respect to any secured investment or other transfer of title with respect to any secured investment;
(h)    Investments in any assets constituting a business unit received by the Borrower or its Subsidiaries by virtue of a Permitted Asset Swap or acquired as a Capital Expenditure;

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(i)    Hedging Agreements or Cash Management Obligations permitted under Section 7.03(e);
(j)    Investments consisting of purchases of the Priority Lien Notes to the extent not prohibited hereunder;
(k)    Investments by the Borrower or any Restricted Subsidiary in Restricted Subsidiaries, and Investments by any Restricted Subsidiary in the Borrower; provided that Investments by a Loan Party in Restricted Subsidiaries that are not Loan Parties, when aggregated with Indebtedness made by any Loan Party to a non-Loan Party Restricted Subsidiary pursuant to Section 7.03(f) (other than Pledged Intercompany Indebtedness subject to the second proviso of such Section) and Disqualified Equity Interests issued by a non-Partynon-Loan Party Restricted Subsidiary to a Loan Party pursuant to Section 7.03(f) and Investments made pursuant Section 7.02(n)(iii), shall not in the aggregate exceed the greater of $100,000,000 and 1.252.5% of Consolidated Net Tangible Assets;
(l)    Investments by the Borrower or any Restricted Subsidiary in Unrestricted Subsidiaries and Joint Ventures in an aggregate amount not to exceed the greater of $250,000,000 and 3.56.5% of Consolidated Net Tangible Assets;
(m)    additional Investments by the Borrower or any Restricted Subsidiary (i) in an aggregate amount not to exceed the greater of $100,000,000 and 1.252.5% of Consolidated Net Tangible Assets plus (ii) so long as no Event of Default is continuing immediately prior to making such Investment or would result therefrom, an amount equal to the Cumulative Amount;
(n)    any acquisition of all or substantially all the assets of, or all of the Equity Interests in, or merger, consolidation or amalgamation with, a Person or division or, line of business or product line of a Person if (i) no Event of Default is continuing immediately prior to making such Investment or would result therefrom, (ii) each applicable Loan Party and any such newly created or acquired Restricted Subsidiary shall, or will within the times specified therein, have complied with the applicable requirements of Section 6.16, if any, and (iii) in respect of an acquisition of targets that will not become Loan Parties or assets that will not be acquired by Loan Parties, the aggregate amount of such Investments, when taken together with Indebtedness of a non-Loan Party Restricted Subsidiary made by any Loan Party to a non-Loan Party pursuant to Section 7.03(f) (other than Pledged Intercompany Indebtedness subject to the second proviso of such Section) and Disqualified Equity Interests issued by a non-Partynon-Loan Party Restricted Subsidiary to a Loan Party pursuant to Section 7.03(f) and Investments by a Loan Party in non-Loan PartiesParty Restricted Subsidiaries made pursuant to Section 7.02(k), shall not in the aggregate exceed the greater of $100,000,000 and 1.252.5% of Consolidated Net Tangible Assets;
(o)    Investments acquired as a capital contribution to the Borrower, or made in exchange for, or out of the net cash proceeds of, a substantially concurrent offering of Qualified Equity Interests of the Borrower;
(p)    [reserved];Investments set forth on Schedule 1.01(f) made by the Borrower or a Restricted Subsidiary in connection with the PRB-CO Joint Venture Transaction.

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(q)    (i) receivables owing to the Borrower or any Restricted Subsidiary if created or acquired in the ordinary course of business, (ii) endorsements for collection or deposit in the ordinary course of business and (iii) securities, instruments or other obligations received in compromise or settlement of debts created in the ordinary course of business, or by reason of a composition or readjustment of debts or reorganization of another Person, or in satisfaction of claims or judgments;
(r)    Investments made pursuant to surety bonds, reclamation bonds, performance bonds, bid bonds, appeal bonds and related letters of credit or similar obligations, in each case, to the extent such surety bonds, reclamation bonds, performance bonds, bid bonds, appeal bonds, related letters of credit and similar obligations are permitted under this Agreement;
(s)    Investments consisting of indemnification obligations in respect of performance bonds, bid bonds, appeal bonds, surety bonds, reclamation bonds and completion guarantees and similar obligations under any Mining Law or Environmental Law or with respect to workers’ compensation benefits, in each case entered into in the ordinary course of business, and pledges or deposits made in the ordinary course of business in support of obligations under existing coal sales contracts (and extensions or renewals thereof on similar terms); and
(t)    Investments arising as a result of any Permitted Securitization Program.
7.03    Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a)    Indebtedness arising under the Loan Documents (including any Incremental Facility or Refinancing Facility);
(b)    Indebtedness outstanding on the date hereofSeventh Amendment Effective Date and (other than any individual obligation with respect to such Indebtedness that is less than $2,000,000) listed on Schedule 7.03;
(c)    any Permitted Refinancing Indebtedness of Indebtedness permitted under Section 7.03(b) or of Indebtedness subsequently incurred under this Section 7.03(c);
(d)    Guarantees of the Borrower or any Restricted Subsidiary in respect of Indebtedness otherwise permitted hereunder of the Borrower or any such Restricted Subsidiary;
(e)    Indebtedness in respect of (i) Cash Management Obligations incurred in the ordinary course of business and (ii) Hedging Agreements incurred in the ordinary course of business, consistent with prudent business practice;
(f)    (i) Indebtedness of the Borrower and any Restricted Subsidiary to any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower and (ii) Disqualified Equity Interests of a Restricted Subsidiary issued to the Borrower or another Restricted Subsidiary; provided that, (a) any such Indebtedness extended by any Loan Party or any non-Loan Party to a Loan Party must be subordinated to the Secured Obligations on customary terms and (b) Indebtedness made by any Loan Party toof a non-Loan Party Restricted Subsidiary made by a Loan Party pursuant to this Section 7.03(f) and any Disqualified Equity Interests of a non-Loan Party Restricted

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Subsidiary issued to a Loan Party, together with Investments by a Loan Party in non-Loan PartiesParty Restricted Subsidiaries made pursuant to Section 7.02(k) and Investments made pursuant to Section 7.02(n)(iii), shall not in the aggregate exceed the greater of $100,000,000 and 1.252.5% of Consolidated Net Tangible Assets; provided further, that notwithstanding the foregoing, the Indebtedness extended pursuant to the PIC Intercompany Loan Agreement and any other Indebtedness extended by any Loan Party to any non-Loan Party Restricted Subsidiary shall be permitted (and shall not be subject to the cap in the immediately preceding proviso) so long as such Indebtedness is evidenced by a promissory note, in form and substance reasonably satisfactory to the Administrative Agent (it being acknowledged that the PIC Intercompany Note is satisfactory to the Administrative Agent), and such promissory note shall be pledged to the Collateral Trustee as Collateral (such debt, “Pledged Intercompany Indebtedness”);
(g)    [reserved];
(h)    Guarantees by the Borrower or any Restricted Subsidiary of borrowings by current or former officers, managers, directors, employees or consultants in connection with the purchase of Equity Interests of the Borrower by any such person in an aggregate principal amount not to exceed $2,000,000 at any one time outstanding;
(i)    (i) Indebtedness incurred in connection with any Permitted Securitization Program or (ii) prior to the incurrence of any Incremental Revolving Commitments, Indebtedness incurred in connection with any ABL Facility to the extent such Indebtedness is subject to the ABL Intercreditor Agreement;
(j)    Indebtedness incurred or assumed in connection with Permitted Acquisitions and other permitted Investments consisting of the purchase of a business unit, line of business or a division of a Person or all or substantially all of the assets or all of the Capital Stock of another Person; provided that, after giving effect to the incurrence thereof on a Pro Forma Basis, (i) if such Indebtedness is (or is intended to be) secured by the Collateral on a pari passu basis, the First Lien Leverage Ratio is equal to or less than 1.75 to 1.00 and (ii) if such Indebtedness is secured by the Collateral on a junior-lien basis or unsecured, (a) the Total Leverage Ratio is equal to or less than 2.50 to 1.00 or (b) the Total Leverage Ratio is less than immediately prior to such incurrence; provided that Indebtedness incurred by any non-Loan Party pursuant to this Section 7.03(j) shall not in the aggregate exceed the greater of $100,000,000 and 1.252.5% of Consolidated Net Tangible Assets;
(k)    Indebtedness of the Borrower or any Restricted Subsidiary Incurred to finance the acquisition, construction or improvement of any assets, including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets before the acquisition thereof; provided that the aggregate principal amount at any time outstanding of any Indebtedness incurred pursuant to this clause, including all Permitted Refinancing Debt Incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause, may not exceed the greater of (a) $150 million150,000,000 or (b) 2.03.5% of Consolidated Net Tangible Assets; provided that such amount may be increased by the then-outstanding principal amount of any operating lease in existence on the ClosingSeventh Amendment Effective Date that is actually restructured to a Capital Lease after the ClosingSeventh Amendment Effective Date;

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(l)    Indebtedness of non-Loan Party Restricted Subsidiaries in an aggregate amount not to exceed $75,000,000;
(m)    Indebtedness of Loan Parties constituting (A) unsecured senior or senior subordinated debt securities, (B) debt securities that are secured by a Lien ranking junior to the Liens securing the Secured Obligations or (C) debt securities that are secured by a Lien ranking pari passu with the Liens securing the Secured Obligations in an aggregate principal amount, which when all amounts under clauses (A), (B) and (C) above are added to the aggregate principal amount of all the other Incremental Debt outstanding does not exceed the Incremental Debt Cap (such Indebtedness, the “Incremental Notes”); provided that (1) with respect to Indebtedness of Loan Parties incurred under clause (m)(C) hereof, (x) the final stated maturity of such Indebtedness shall not be sooner than the Maturity Date , (y) the weighted average life to maturity of such Indebtedness is greater than or equal to the weighted average life to maturity of the Term Loans and any other Incremental Facilities and Refinancing Facilities, and (z) such Indebtedness shall not be subject to any mandatory prepayment, repurchase or redemption provisions, unless the prepayment, repurchase or redemption of such Indebtedness is accompanied by the prepayment of a pro rata portion of the outstanding principal of the Term Loans hereunder pursuant to Section 2.05 hereof, (2) with respect to Indebtedness of Loan Parties incurred under clause (m)(A) or (m)(B) hereof, (x) the final stated maturity of such Indebtedness shall not be sooner than 180 days after the Maturity Date , (y) the weighted average life to maturity of such Indebtedness is greater than the weighted average life to maturity of the Term Loans and any other Incremental Facilities and Refinancing Facilities and (z) such Indebtedness does not have scheduled amortization or payments of principal and shall not be subject to mandatory redemption, repurchase, prepayment or sinking fund obligations (other than pursuant to customary asset sale, event of loss, excess cash flow (provided that such excess cash flow sweep does not require the application of any excess cash flow that would otherwise be required to be applied to the prepayment of the Term Loans pursuant to Section 2.05(g) hereof), change of control prepayment provisions and a customary acceleration right after an event of default), in each case prior to the Maturity Date at the time such Indebtedness is incurred, (3) no Default or Event of Default shall have occurred or be continuing at the time of occurrence of such Indebtedness or would result therefrom, (4) to the extent secured, (x) such Indebtedness shall not be secured by a Lien on any asset of the Borrower and its Restricted Subsidiaries that does not also secure the Term Loan Facility and (y) such Indebtedness shall be subject to the Collateral Trust Agreement and (5) to the extent guaranteed, such Indebtedness shall not be guaranteed by a Restricted Subsidiary that is not a Guarantor of the Secured Obligations;
(n)    (i) Indebtedness of Loan Parties constituting (A) unsecured senior or senior subordinated debt securities, (B) debt securities that are secured by a Lien ranking junior to the Liens securing the Secured Obligations or (C) debt securities that are secured by a Lien ranking pari passu with the Liens securing the Secured Obligations in an aggregate principal amount, which Refinances some or all of the Term Loans incurred hereunder and has an aggregate principal amount which does not exceed the principal amount of the Term Loans hereunder which are being Refinanced except with respect to any Permitted Refinancing Increase (such Indebtedness, the “Refinancing NotesDebt”); provided that (1) with respect to Refinancing NotesDebt incurred under clause (n)(C) hereof, (x) the final stated maturity of such Refinancing NotesDebt shall not be sooner than the Maturity Date , (y) the weighted average life to maturity of such Refinancing NotesDebt is greater than or equal to the weighted average life to maturity of the Term Loans and any other Incremental Facilities and Refinancing Facilities, and (z) such Refinancing NotesDebt

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shall not be subject to any mandatory prepayment, repurchase or redemption provisions, unless the prepayment, repurchase or redemption of such Indebtedness is accompanied by the prepayment of a pro rata portion of the outstanding principal of the Term Loans hereunder pursuant to Section 2.05 hereof, (2) with respect to Refinancing NotesDebt incurred under clause (n)(A) or (n)(B) hereof, (x) the final stated maturity of such Refinancing NotesDebt shall not be sooner than 180 days after the Maturity Date , (y) the weighted average life to maturity of such Refinancing NotesDebt is greater than the weighted average life to maturity of the Term Loans and any other Incremental Facilities and Refinancing Facilities and (z) such Refinancing Notes doDebt does not have scheduled amortization or payments of principal and shall not be subject to mandatory redemption, repurchase, prepayment or sinking fund obligations (other than pursuant to customary asset sale, event of loss, excess cash flow (provided that such excess cash flow sweep does not require the application of any excess cash flow that would otherwise be required to be applied to the prepayment of the Term Loans pursuant to Section 2.05(g) hereof), change of control prepayment provisions and a customary acceleration right after an event of default), in each case prior to the Maturity Date at the time such Refinancing Notes areDebt is incurred, (3) no Default or Event of Default shall have occurred or be continuing at the time of occurrence of such Refinancing NotesDebt or would result therefrom, (4) to the extent secured, (x) such Indebtedness shall not be secured by a Lien on any asset of the Borrower and its Restricted Subsidiaries that does not also secure the Term Loan Facility and (y) such Indebtedness shall be subject to the Collateral Trust Agreement, and (5) to the extent guaranteed, such Indebtedness shall not be guaranteed by a Restricted Subsidiary that is not a Guarantor of the Secured Obligations;
(o)    Priority Lien Notes Indebtedness in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this Section 7.03(o), not to exceed $1,000,000,000 (plus any Permitted Refinancing Increase in respect thereof) at any one time outstanding; provided that (x) such Indebtedness shall not be secured by a Lien on any asset of the Borrower and its Restricted Subsidiaries that does not also secure the Term Loan Facility, (y) such Indebtedness shall be subject to the Collateral Trust Agreement and (z) such Indebtedness shall not be guaranteed by a Restricted Subsidiary that is not a Guarantor of the Secured Obligations;
(p)    [reserved];
(q)    additional Indebtedness of the Loan Parties in an amount not to exceed the greater of $150,000,000 and 2.03.5% of Consolidated Net Tangible Assets in the aggregate at any time outstanding;
(r)    Indebtedness of the Borrower or any Restricted Subsidiary in connection with one or more standby or trade-related letters of credit, performance bonds, bid bonds, appeal bonds, bankers acceptances, insurance obligations, reclamation obligations, bank guarantees, surety bonds, completion guarantees or other similar bonds and obligations, including self-bonding arrangements, issued by the Borrower or a Restricted Subsidiary, in each case, in the ordinary course of business or pursuant to self-insurance obligations and not in connection with the borrowing of money or the obtaining of advances;
(s)    Indebtedness arising from agreements of the Borrower or any Restricted Subsidiaries providing for indemnification, adjustment of purchase price, earnouts or similar

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obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or any Subsidiary;
(t)    Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business;
(u)    Indebtedness of the Borrower or any Restricted Subsidiary consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply or other arrangements; and
(v)    any transaction permitted under Section 7.16.
7.04    Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of the assets (whether now owned or hereafter acquired) of the Borrower and its Restricted Subsidiaries, taken as a whole, to or in favor of any Person, except that, if no Default exists or would immediately result therefrom:
(a)    any Subsidiary may merge or consolidate with (i) the Borrower, provided that the Borrower shall be the continuing or surviving Person or (ii) any one or more other Subsidiaries, provided that (A) when any wholly-owned Subsidiary is merging with another Subsidiary, the wholly-owned Subsidiary shall be the continuing or surviving Person, (B) when any Restricted Subsidiary is merging with any other Subsidiary, the continuing or surviving Person (unless such surviving Person could otherwise be designated an Unrestricted Subsidiary hereunder) shall be a Restricted Subsidiary, (C) when any Foreign Subsidiary is merging with any Domestic Subsidiary, the continuing or surviving Person shall be the Domestic Subsidiary and (D) when any Guarantor is merging with any other Subsidiary, the continuing or surviving Person shall be a Guarantor (and shall not be a Specified Subsidiary);
(b)    any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Subsidiary; provided that (i) if the transferor in such a transaction is a Restricted Subsidiary, then the transferee must either be the Borrower or another Restricted Subsidiary (unless such Disposition would otherwise be permitted as an Investment in an Unrestricted Subsidiary), (ii) if the transferor is a Domestic Subsidiary, then the transferee must either be the Borrower or another Domestic Subsidiary and (iii) if the transferor is a Guarantor, then the transferee must either be the Borrower or another Guarantor (and shall not be a Specified Subsidiary);
(c)    the Borrower and any Restricted Subsidiary may merge or consolidate with any other Person in a transaction in which the Borrower or the Restricted Subsidiary, as applicable, is the surviving or continuing Person; provided that, (i) the Borrower may not merge or consolidate with a Restricted Subsidiary unless the Borrower is the surviving or continuing Person and (ii) such merger or consolidation is permitted under Section 7.02(n) hereof; and
(d)    any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and not materially disadvantageous to the Lenders and the assets, if any, of any Restricted Subsidiary so

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liquidated or dissolved are transferred (x) to another Restricted Subsidiary or the Borrower and (y) to a Guarantor (that is not a Specified Subsidiary) or the Borrower if such liquidated or dissolved Restricted Subsidiary is a Guarantor.
7.05    Dispositions. Make any Disposition or enter into any agreement to make any Disposition (other than Dispositions permitted pursuant to Sections 7.01, 7.04(a) - (d) and 7.06), except:
(a)    Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is no longer useful in its business (but excluding any real property);
(b)    (i) Dispositions of inventory, equipment or accounts receivable in the ordinary course of business and (ii) Dispositions of accounts receivable in connection with a factoring facility in an aggregate outstanding principal amount not to exceed $25,000,000 at any time entered into by a non-Guarantornon-Loan Party Restricted Subsidiary of the Borrower undertaken consistent with past practice or in the ordinary course of business;
(c)    Dispositions of the assets set forth on Schedule 7.05;
(d)    Dispositions of cash and Cash Equivalents pursuant to transactions permitted under this Agreement (including pursuant to Section 7.02) or otherwise in the ordinary course of business;
(e)    Dispositions of Receivables Assets pursuant to Permitted Securitization Programs;
(f)    (A) the sale of defaulted receivables in the ordinary course of business and not as part of a Permitted Securitization Program and (B) Dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceeding;
(g)    licensing, sublicensing and cross-licensing arrangements involving any technology or other intellectual property of the Borrower or any Restricted Subsidiary in the ordinary course of business or lapse or abandonment of intellectual property rights in the ordinary course of business that, in the reasonable judgment of the Borrower, is no longer useful in its business;
(h)    Permitted Asset Swaps;
(i)    (A) the grant in the ordinary course of business of any non-exclusive easements, permits, licenses, rights of way, surface leases or other surface rights or interests and (B) any lease, sublease or license of assets (with a Loan Partythe Borrower or a Restricted Subsidiary as the lessor, sublessor or licensor) in the ordinary course of business;
(j)    (i) transfers of condemned property as a result of the exercise of “eminent domain” or other similar policies or (ii) transfers of properties that have been subject to a casualty event or act of god;
(k)    if immediately after giving effect to such Disposition, (i) no Event of Default has occurred and is continuing, (ii) the consideration received for such Disposition shall be in an

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amount at least equal to the fair market value thereof as reasonably determined by the Borrower in good faith and (iii) at least 75% of the consideration for such Dispositions undertaken pursuant to this Section 7.05(k) shall be paid in cash or Cash Equivalents, provided that, for purposes of this provision, each of the following shall be deemed to be cash:
(A)    any securities, notes, other obligations or assets received by the Borrower or any Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof, to the extent of the cash or Cash Equivalents received in that conversion;
(B)    any liabilities of the Borrower or any Restricted Subsidiary (other than contingent liabilities) that are assumed by the transferee of any such assets and as a result of which the Borrower or such Restricted Subsidiary is released from further liability; and
(C)    any Designated Non-Cash Consideration received by the Borrower or any of its Restricted Subsidiaries in such Disposition; provided that the quantity equal to (1) the aggregate fair market value of such Designated Non-Cash Consideration, as reasonably determined by the Borrower in good faith, taken together with the fair market value at the time of receipt of all other Designated Non-Cash Consideration received pursuant to this clause (BC) minus (2) the amount of Net Proceeds previously realized in cash from prior Designated Non-Cash Consideration shall not exceed $25,000,000;
(l)    any Investment permitted pursuant to Sections 7.02(l) or, 7.02(m) or 7.02(p), which constitutes a Disposition;
(m)    Dispositions that do not constitute Asset Sales;
(n)    to the extent allowable under Section 1031 of the Code, or any comparable or successor provision, any like kind exchange of property for use in a Similar Business;
(o)    (i) any surrender or waiver of contractual rights or the settlement, release, or surrender of contractual rights or other litigation claims in the ordinary course of business or (ii) any settlement, discount, write off, forgiveness, or cancellation of any Indebtedness owing by any present or former directors, officers, or employees of the Borrower or` any Restricted Subsidiary or any of their successors or assigns;
(p)    the unwinding or termination of any Hedging Obligations or Cash Management Obligations; and
(q)    (q)    the sale of assets by the Borrower and its Restricted Subsidiaries consisting of Real Property solely to the extent that such Real Property is not necessary for the normal conduct of operations of the Borrower and its Restricted Subsidiaries.; and
(r)    Dispositions between a Loan Party and a non-Loan Party Restricted Subsidiary to the extent such Disposition would be permitted by Section 7.02(k).
7.06    Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment except that:

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(a)    (i) each Subsidiary may make Restricted Payments to the Borrower, the Subsidiaries and any other Person that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made or as otherwise required pursuant to its Organizational Documents and (ii) as of and following the ClosingSeventh Amendment Effective Date, (A) the Borrower and each Subsidiary may make payments and prepayments of principal or interest on account of intercompany Indebtedness owing to the Borrower or any other Loan Party and (B) each non-Loan Party Subsidiary may make payments and prepayments of principal or interest on account of intercompany Indebtedness owing to any non-Loan Party Subsidiary;
(b)    the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other Equity Interests of such Person or another Subsidiary;
(c)    the Borrower may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issuance of new shares of common stock or other Qualified Equity Interests of the Borrower;
(d)    the Borrower or any of its Subsidiaries may purchase (i) Equity Interests in any Loan Party or options with respect thereto held by directors, officers or employees of the Borrower or any Restricted Subsidiary (or their estates or authorized representatives) in connection with (A) the death, disability or termination of employment of any such director, officer or employee or (B) any benefit or incentive plans to provide funds for the payment of any Tax or other amounts owing by such directors, officers or employees upon vesting of the Equity Interests or options provided under such plans; and (ii) Equity Interests in any Loan Party for future issuance under any employee stock plan; provided that (a) no Event of Default has occurred and is continuing at the time of such purchase and (b) for both clauses (i) and (ii), the aggregate cash consideration paid therefor in any twelve-month period after the Closing Date shall not exceed $5,000,000 in the aggregate;
(e)    so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and its Subsidiaries may make Restricted Payments (i) after the Closing Date and prior to the First Amendment Effective Date in an amount not to exceed $50,000,000, and (ii) on or after the First Amendment Effective Date in an amount not to exceed (A) $50,000,000 plus (B) the Cumulative Amount; provided that, in the case of clause (B), the Total Leverage Ratio (calculated on a Pro Forma Basis) shall be less than or equal to 2.00:1.00 after giving effect to such Restricted Payment;
(f)    (i) the Borrower may make regularly scheduled payments of interest on any Junior Lien Indebtedness, (ii) the Borrower and any Subsidiary may make regularly scheduled payments of interest and principal at maturity of unsecured Indebtedness and (iii) the Borrower and any Subsidiary may redeem, repurchase or otherwise acquire or retire for value any unsecured Indebtedness in anticipation of satisfying a scheduled maturity, sinking fund or amortization installment obligation, in the case of this clause (iii), due within one year of the date of such redemption, repurchase, acquisition or retirement;

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(g)    the Borrower may make distributions, by dividend or otherwise, of shares of Capital Stock or Convertible Securities to holders of the Convertible Securities[reserved];
(h)    the repayment, redemption, repurchase, defeasance or other acquisition or retirement for value of unsecured Indebtedness, any Subordinated Indebtedness or any Junior Lien Indebtedness (i) with the net cash proceeds of, or in exchange for, Permitted Refinancing Indebtedness or (ii) in exchange for, or out of the proceeds of, a substantially concurrent issue of new shares of common stock or other Qualified Equity Interests of the Borrower;
(i)    the Borrower may make regularly scheduled payments of interest in respect of any Subordinated Indebtedness in accordance with the terms thereof and only to the extent required by and subject to the subordination provisions contained therein;
(j)    cash payments in lieu of fractional shares upon exercise of options or warrants or conversion or exchange of convertible securities, repurchases of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such securities represent a portion of the exercise price of such options, warrants or other convertible securities and repurchases of Equity Interests in connection with the withholding of a portion of the Equity Interests granted or awarded to a director or an employee to pay for the Taxes payable by such director or employee upon such grant or award;
(k)    any payments made in connection with the Transactions in accordance with the Plan of Reorganization[reserved];
(l)    notwithstanding the foregoing, if the Borrower declares a dividend or distribution in the foregoing clauses (a) through (k), the Borrower can pay any such dividend or distribution within 60 days after the date of declaration thereof; and
(m)    (i) payments of dividends on the Borrower’s common stock or purchases by the Borrower of its common stock in an aggregate amount in any calendar year not to exceed $25,000,000, so long as, the Total Leverage Ratio would not exceed 1.25 to 1.00 on a Pro Forma Basis; provided that no such Restricted Payment shall be made pursuant to this clause (m)(i) until the calendar year commencing on January 1, 2018 and (ii) payments of dividends on the Borrower’s common stock, payments of dividends on the Borrower’s Preferred Stock, purchases by the Borrower of its common stock, purchases by the Borrower of its Preferred Stock or similar distributions in an aggregate amount not to exceed $450,000,000, so long as, the Fixed Charge Coverage Ratio would not be less than 2.00 to 1.00 on a Pro Forma Basis.
7.07    Change in Nature of Business. Engage in any material line of business other than a Similar Business.
7.08    Transactions with Affiliates. Enter into, renew or extend any transaction or arrangement, including, without limitation, any purchase, sale, lease or exchange of property or assets or the rendering of any service, with any Affiliate of the Borrower or any Restricted Subsidiary (a “Related Party Transaction”) involving an aggregate consideration in excess of $25,000,000, unless the Related Party Transaction is (a) not prohibited by this Agreement and (b) on fair and reasonable terms that are not materially less favorable (as reasonably determined by the Borrower) to the Borrower or any of the relevant Restricted Subsidiaries than those that

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could be obtained in a comparable arm’s-length transaction with a Person that is not an Affiliate of the Borrower; provided that (i) any Related Party Transaction or series of Related Party Transactions with an aggregate value in excess of $50,000,000 must first be approved by a majority of the board of directors of the Borrower who are disinterested in the subject matter of the transaction pursuant to a resolution by the board of directors of the Borrower and (ii) with respect to any Related Party Transaction or series of Related Party Transactions with an aggregate value in excess of $100,000,000, the Borrower must deliver to the Administrative Agent an opinion from an accounting, appraisal, or investment banking firm of national standing in the applicable jurisdiction (x) stating that its terms are not materially less favorable to the Borrower or any of the relevant Restricted Subsidiaries that would have been obtained in a comparable transaction with an unrelated Person or (ii) as to the fairness to the Borrower or any of the relevant Restricted Subsidiaries of such Related Party Transaction from a financial point of view. Notwithstanding the foregoing, the foregoing restrictions shall not apply to the following:
(A)    transactions between or among the Borrower and any of its Loan Parties or between and among(i) any Loan Parties and (ii) any non-Loan Party Restricted Subsidiaries;
(B)    the payment of reasonable and customary fees and reimbursement of expenses payable to directors of the Borrower or any of its Restricted Subsidiaries or to any Plan, Plan administrator or Plan trustee;
(C)    loans and advances to directors, officers and employees to the extent permitted by Section 7.02;
(D)    the arrangements with respect to the procurement of services of directors, officers, independent contractors, consultants or employees in the ordinary course of business and the payment of customary compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and reasonable reimbursement arrangements in connection therewith;
(E)    payments to directors and officers of the Borrower and its Restricted Subsidiaries in respect of the indemnification of such Persons in such respective capacities from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements, as the case may be, pursuant to the Organizational Documents or other corporate action of the Borrower or its Restricted Subsidiaries, respectively, or pursuant to applicable law;
(F)    (i) intercompany Investments permitted pursuant to SectionSections 7.02(k) and 7.02(p), (ii) intercompany Indebtedness and issuances of Disqualified Equity Interests, in each case, permitted pursuant to Section 7.03(f) and (iii) Dispositions not prohibited by Section 7.05;
(G)    Restricted Payments permitted by Section 7.06; and
(H)    transactions arising under any contract, agreement, instrument or other arrangement in effect on the ClosingSeventh Amendment Effective Date and set forth

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on Schedule 7.08, as amended, modified or replaced form time to time so long as the amended, modified or new arrangements, taken as a whole at the time such arrangements are entered into, are not materially less favorable to the Borrower and its Restricted Subsidiaries than those in effect on the ClosingSeventh Amendment Effective Date.
7.09    [Reserved].
7.10    Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.
7.11    Financial Covenant. Permit the First Lien Leverage Ratio as of the end of each fiscal quarter of the Borrower to be greater than 2.00 to 1.00.
7.12    Burdensome Agreements. Enter into any Contractual Obligation that (x) limits the ability of the Borrower or any Guarantor to create, incur, assume or suffer to exist any Lien upon any of its property to secure the Obligations hereunder or (y) limits the ability of any Subsidiary to make Restricted Payments to the Borrower or any Guarantor or to otherwise transfer property to the Borrower or any Guarantor; provided, however, that the foregoing clause shall not apply to Contractual Obligations which:
(a)    solely in the case of clause (y) of this Section 7.12, exist on the date hereof and (to the extent not otherwise permitted by this Section 7.12) are listed on Schedule 7.12 as of the Seventh Amendment Effective Date;
(b)    are binding on a Restricted Subsidiary at the time such Restricted Subsidiary first becomes a Restricted Subsidiary of the Borrower, so long as such Contractual Obligations were not entered into solely in contemplation of such Person becoming a Restricted Subsidiary of the Borrower;
(c)    arise in connection with any Lien permitted by Section 7.01(i) to the extent such restrictions relate to the assets (and any proceeds in respect thereof) which are the subject of such Lien;
(d)    represent Indebtedness permitted by Section 7.03 (other than secured Indebtedness permitted by Section 7.03(k)); provided that such restrictions (i) apply solely to Restricted Subsidiaries that are not Guarantors or (ii) are no more restrictive than the limitations (taken as a whole) set forth in the Loan Documents and do not materially impair the Borrower’s ability to grant the security interests to the Collateral Trustee contemplated by the Loan Documents or pay the Obligations under the Loan Documents as and when due (as reasonably determined in good faith by the Borrower) ;
(e)    [reserved];
(f)    arise in connection with any Disposition permitted by Section 7.05 solely with respect to the assets that are the subject of such Disposition;

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(g)    are customary provisions in joint venture agreements and other similar agreements applicable solely to such joint venture or the Equity Interests therein (but excluding any such agreement related to the Gibraltar Holdings or any Specified Subsidiary);
(h)    are customary restrictions on leases, subleases, licenses or asset sale agreements otherwise permitted hereby so long as such restrictions relate to the assets subject thereto;
(i)    are customary provisions restricting subletting or assignment of any lease governing a leasehold interest of the Borrower or any Restricted Subsidiary;
(j)    are customary limitations (including financial maintenance covenants) existing under or by reason of leases entered into in the ordinary course of business;
(k)    are restrictions on cash or other deposits imposed under contracts entered into in the ordinary course of business;
(l)    are customary provisions restricting assignment of any agreements;
(m)    are restrictions imposed by any agreement relating to any Permitted Securitization Program to the extent that such restrictions relate to the assets (and any proceeds in respect thereof) that are the subject of such Permitted Securitization Program; or
(n)    are set forth in any agreement evidencing an amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing of the Contractual Obligations referred to in clauses (a) through (m) above; provided, that such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing is, in the good faith judgment of the Borrower, not materially less favorable to the Loan Party with respect to such limitations than those applicable pursuant to such Contractual Obligations prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
7.13    Restrictions on Specified Subsidiaries. (a) With respect to each Specified Subsidiary, permit such Specified Subsidiary to, (i) retain any cash other than cash (A) necessary to continue to operate in the ordinary course and comply with any Requirement of Law, as reasonably determined by it or the Borrower, or (B) where such Specified Subsidiary has taken commercially reasonable efforts to execute and deliver a deposit account control agreement perfecting the Collateral Trustee’s Lien in such deposit account; (ii) consolidate with or merge with or into any Person; (iii) incur, directly or indirectly, any Indebtedness or any other obligation or liability whatsoever other than (A) the Indebtedness and obligations under this Agreement and the other Loan Documents, (B) solely with respect to Gibraltar Holdings, intercompany Indebtedness permitted hereunder and (C) to the extent otherwise permitted hereunder, the Indebtedness and obligations under the Priority Lien Notes Documents and the ABL Credit Documents; (iv) create or suffer to exist any Lien upon any property or assets now owned or hereafter acquired, leased or licensed by it other than the Liens created under the Security Documents to which it is a party and, to the extent otherwise permitted hereunder, the Priority Lien Notes Documents; (v) sell or otherwise dispose of any Equity Interests of Gibraltar Holdings or Peabody Investments (Gibraltar) Limited, as applicable; or (vi) fail to hold itself out to the public as a legal entity separate and distinct from

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all other Persons; and (b) with respect to each Specified Subsidiary (other than Gibraltar Holdings), permit such Specified Subsidiary to, (i) engage in any business or activity or own any assets other than (A) holding 100% of the Equity Interests of Gibraltar Holdings, (B) performing its obligations and activities incidental thereto under the Loan Documents, the Priority Lien Notes Documents and the ABL Credit Documents; and (C) making Restricted Payments to a Guarantor or the Borrower; (ii) convey, transfer, lease or license any of its assets to, any Person; or (iii) create or acquire any Subsidiary or make or own any Investment in any Person (other than any intercompany Investments to a Guarantor or the Borrower), in each case, after the Closing Date; provided, that, notwithstanding the foregoing, Gibraltar Holdings can undertake any action necessary or desirable to consummate the Permitted Australian Restructuring Transactions.Seventh Amendment Effective Date.
7.14    [Reserved].
7.15    Fiscal Year. Change its fiscal year-end from December 31.
7.16    Sale and Lease-Backs. Become or remain liable as lessee or as a guarantor or other surety with respect to any lease of any property (whether real, personal or mixed), whether now owned or hereafter acquired, which the Borrower or such Restricted Subsidiary (a) has sold or transferred or is to sell or to transfer to any other Person (other than the Borrower or any of its Restricted Subsidiaries), to the extent involving the sale of assets with a fair market value in excess of $100,000,000 in the aggregate and (b) intends to use for substantially the same purpose as any other property which has been or is to be sold or transferred by the Borrower or such Restricted Subsidiary to any Person (other than the Borrower or any of its Restricted Subsidiaries) in connection with such lease.
7.17    Amendments or Waivers of Organizational Documents. Agree to any amendment, restatement, supplement or other modification to, or waiver of, any of its Organizational Documents after the ClosingSeventh Amendment Effective Date, in each case, to the extent the same would reasonably be expected to be material and adverse to any Secured Party (in the good faith determination of the Borrower), without obtaining the prior written consent of Required Lenders to such amendment, restatement, supplement or other modification or waiver.
7.18 Restructuring Transactions. Nothing in this Article VII shall prohibit the Borrower and its Subsidiaries from consummating the Permitted Restructuring Transactions.
7.18    7.19 Permitted Australian RestructuringPRB-CO Joint Venture Transactions. Nothing in this Article VII shall prohibit the Loan Parties and non-Loan Party Restricted Subsidiaries from consummating the Permitted Australian RestructuringPRB-CO Joint Venture Transactions and, for the avoidance of doubt, the restrictions in Section 7.08Article VII hereof shall not apply with respect to the Permitted Australian Restructuring Transactions (including, for the avoidance of doubt, an opinion from an accounting, appraisal or investment banking firm of national standing shall not be required)PRB-CO Joint Venture Transactions. The Administrative Agent is hereby authorized to deliver directions in writing to the Collateral Trustee from time to time (it being agreed that each such direction shall constitute an Act of Required Secured Parties under the

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Collateral Trust Agreement, and, by its execution of this Agreement, Lenders constituting Required Lenders shall be deemed to have provided written consent to each such direction) authorizing and directing the Collateral Trustee to take any actions necessary to implement the Permitted Australian RestructuringPRB-CO Joint Venture Transactions, as reasonably determined by the Administrative Agent.
Article VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01    Events of Default. Any of the following shall constitute an “Event of Default”:
(a)    Non-Payment. The Borrower or any other Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan, any L/C Borrowing or any L/C Obligation, or (ii) within five days after the same becomes due, any interest on any Loan, on any any L/C Borrowing or on any L/C Obligation, or any fee due hereunder, any other amount payable hereunder or under any other Loan Document; or
(b)    Specific Covenants. The Borrower fails to perform or observe any term, covenant or agreement contained in any of Sections 6.01(a), 6.01(b), 6.02(b), 6.03(a), 6.05, 6.11 or Article VII; provided that any Event of Default as a result of the Borrower’s failure to comply with Section 7.11 shall not constitute an Event of Default with respect to any Term Loan Facility until the date on which the Required Revolving Lenders have declared all Incremental Revolving Loans and related Obligations to be immediately due and payable in accordance with this Agreement and terminated the Incremental Revolving Commitments as a result of the Borrower’s failure to comply with Section 7.11 and such declaration has not been rescinded; or
(c)    Other Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for 30 days; provided that any Event of Default as a result of the Borrower’s failure to comply with Section 7.11 shall not constitute an Event of Default with respect to any Term Loan Facility until the date on which the Required Revolving Lenders have declared all Incremental Revolving Loans and related Obligations to be immediately due and payable in accordance with the provisions of this Agreement and terminated the Incremental Revolving Commitments as a result of the Borrower’s failure to comply with Section 7.11 and such declaration has not been rescinded; or
(d)    Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower or any other Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made; or
(e)    Cross-Default. The Borrower or any Restricted Subsidiary (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder) in each case having an aggregate principal amount of more than the Threshold Amount, beyond the

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period of grace, if any, provided in the instrument or agreement under which such Indebtedness or Guarantee was created, (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity, or such Guarantee to become due or payable, or (C) fails to observe or perform any agreement or condition relating to any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, as a result of which default or other event, the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) shall have caused, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity, or such Guarantee to become due or payable; or
(f)    Insolvency Proceedings, Etc. Subject to Section 8.03, any Loan Party or any of its Restricted Subsidiaries institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any substantial part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any substantial part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or
(g)    Inability to Pay Debts; Attachment. Subject to Section 8.03, (i) the Borrower or any Restricted Subsidiary becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any substantial part of the property of any such Person and is not released, vacated or fully bonded within 60 days after its issue or levy; or
(h)    Judgments. There is entered against the Borrower or any Restricted Subsidiary a final judgment or order for the payment of money in an aggregate amount exceeding the Threshold Amount (to the extent not covered by independent third party insurance), and such judgments or orders shall not have been vacated, discharged, stayed or bonded pending appeal within 60 days from the entry thereof; or
(i)    ERISA. The occurrence of any of the following events that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect: (i) an ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in an actual obligation to pay money of the Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any

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installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan; or
(j)    Invalidity of Loan Documents. Any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or Payment In Full, ceases to be in full force and effect; or any Loan Party or any other Person contests in any manner the validity or enforceability of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan Document; or any Security Document ceases to create a valid Lien with the priority required thereby on the Collateral covered thereby (other than as expressly permitted thereunder or solely as a result of the acts or omissions of the Administrative Agent or Collateral Trustee (including failure to maintain possession of any stock certificates, or other instruments delivered to it under any Security Document)); or
(k)    Change of Control. There occurs any Change of Control; or
(l)    Subordinated Indebtedness. Any Subordinated Indebtedness or any Junior Lien Indebtedness permitted hereunder or the guarantees thereof or, in the case of Junior Lien Indebtedness, the Liens securing such Junior Lien Indebtedness, shall cease, for any reason, to be validly subordinated to the Obligations of the Loan Parties hereunder, as provided in the Collateral Trust Agreement or the indenture governing such Subordinated Indebtedness or Junior Lien Indebtedness, or any Loan Party, any Affiliate of any Loan Party, the trustee in respect of the Subordinated Notes or Junior Lien Indebtedness or the holders of at least 25% in aggregate principal amount of the Subordinated Notes or Junior Lien Indebtedness shall so assert.
8.02    Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders (except that, with respect to an Event of Default under Section 8.01(b) or (c), in each case, when such Event of Default does not exist with respect to the Term Loans, Administrative Agent may only act at the request of, or with the consent of, Required Facility Lenders under any Incrementalthe Revolving Facility), take any or all of the following actions:
(a)    declare the commitment of each Lender to make Loans and any obligation of the L/C Issuers to issue or make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;
(b)    declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower;
(c)    require that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount thereof); and
(d)    exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents or applicable law;

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provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under Debtor Relief Laws of the United States or any other Event of Default under Section 8.01(f) or (g) hereof, the obligation of each Lender to make Loans and any obligation of any L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.
8.03    Exclusion of Immaterial Subsidiaries. Solely for the purposes of determining whether an Event of Default has occurred under clause (f) or (g) of Section 8.01, any reference in any such clause to any Restricted Subsidiary shall be deemed not to include any Restricted Subsidiary affected by any event or circumstance referred to in any such clause that did not, as of the last day of the fiscal quarter of the Borrower most recently ended, have assets with a value in excess of 5% of the Tangible Assets or 5% of consolidated total revenues, in each case, of the Borrower and the Restricted Subsidiaries as of such date; provided that if it is necessary to exclude more than one Restricted Subsidiary from clause (f) or (g) of Section 8.01 pursuant to this Section 8.03 in order to avoid an Event of Default thereunder, all excluded Restricted Subsidiaries shall be considered to be a single consolidated Restricted Subsidiary for purposes of determining whether the condition specified above is satisfied.
8.04    Application of Funds. Subject to the Collateral Trust Agreement, after the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.02), any amounts received on account of the Secured Obligations (including proceeds of Collateral) shall be applied by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article III) payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and any L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders and any L/C Issuer (including fees and time charges for attorneys who may be employees of any Lender or any L/C Issuer) and amounts payable under Article III), ratably among them in proportion to the respective amounts described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably among the Lenders and any L/C Issuer in proportion to the respective amounts described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans and L/C Borrowings and to payment of the unpaid Secured Hedging Obligations, ratably

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among the Lenders, the L/C Issuers and Hedge Banks to the Secured Hedging Agreements giving rise to such Secured Hedging Obligations in proportion to the respective amounts described in this clause Fourth held by them;
Fifth, to the Administrative Agent for the account of any L/C Issuer, to Cash Collateralize that portion of the L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit;
Sixth, to payment of the unpaid Secured Cash Management Obligations, ratably among the Cash Management Banks party to the SpecifiedSecured Cash Management Agreements giving rise to such Secured Cash Management Obligations in proportion to the respective amounts described in this clause Sixth held by them; and
Last, the balance, if any, after all of the Secured Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to the terms hereof, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Secured Obligations, if any, in the order set forth above.
Article IX.
ADMINISTRATIVE AGENT
9.01    Appointment and Authority. Each of the Lenders and each L/C Issuer hereby irrevocably appoints Goldman SachsJPMorgan Chase Bank USA, N.A. to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and irrevocably authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers, rights and remedies as are delegated or granted to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. Except with respect to Section 9.06, Section 9.10 and Section 9.12, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuers, and neither the Borrower, nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions. In performing its functions and duties hereunder, the Administrative Agent shall act solely as an agent of the Lenders and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with or for the Borrower or any of its Subsidiaries.
9.02    Rights as a Lender. The agency hereby created shall in no way impair or affect any of the rights and powers of, or impose any duties or obligations upon, the Administrative Agent in its individual capacity as a Lender hereunder. With respect to its participation in the Loans, the Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person

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and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder, and may accept fees and other considerations from the Borrower for service in connection herewith and otherwise without any duty to account therefor to the Lenders.
9.03    Exculpatory Provisions. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, the Administrative Agent:
(a)    shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing;
(b)    shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including, for the avoidance of doubt, any action that, in its opinion or the opinion of its counsel, may violate the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and
(c)    shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity; and
(d)    shall not be responsible or have any liability for or in connection with, or have any duty to ascertain, inquire into, monitor, maintain, update or enforce, compliance with the provisions hereof relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution.
Neither the Administrative Agent nor any of its officers, partners, directors, employees or agents shall be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section 10.01 and 8.02) or (ii) in the absence of its own bad faith, gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction. The Administrative Agent shall be deemed not to have

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knowledge of any Default or Event of Default unless and until notice describing such Default is given to the Administrative Agent by the Borrower, a Lender or an L/C Issuer.
The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any recital, statement, warranty or representation made in or in connection with this Agreement or any other Loan Document or made in any written or oral statements made in connection with the Loan Documents and the transactions contemplated thereby, (ii) the contents of any financial or other statements, instruments, certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, whether made by the Administrative Agent to the Lenders or the L/C Issuers or by or on behalf of any Loan Party to the Administrative Agent or any Lender or any L/C Issuer in connection with the Loan Documents and the transactions contemplated thereby, (iii) the financial condition or business affairs of any Loan Party or any other Person liable for the payment of any Obligations, (iv) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the use of proceeds of the Loans or Letters of Credit or the occurrence or possible occurrence of any Default or Event of Default or to make any disclosures with respect to the foregoing, (iv) the execution, validity, enforceability, effectiveness, genuineness, collectability or sufficiency of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. Anything contained herein to the contrary notwithstanding, the Administrative Agent shall not have any liability arising from confirmation of the amount of outstanding Loans or the component amounts thereof.
9.04    Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or such L/C Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender or such L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent shall be entitled to rely on and may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
9.05    Delegation of Duties. The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub agents appointed by the Administrative Agent. The Administrative Agent and any such sub agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory,

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indemnification and other provisions of this Article and Section 10.04 shall apply to any such sub agent and to the Related Parties of the Administrative Agent and any such sub agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. All of the rights, benefits, and privileges (including the exculpatory and indemnification provisions) of this Article shall apply to any such sub agent and to the Related Parties of any such sub agent, and shall apply to their respective activities as sub agent as if such sub agent and Related Parties were named herein. Notwithstanding anything herein to the contrary, with respect to each sub agent appointed by the Administrative Agent, (i) such sub agent shall be a third party beneficiary under this Agreement with respect to all such rights, benefits and privileges (including exculpatory rights and rights to indemnification) and shall have all of the rights and benefits of a third party beneficiary, including an independent right of action to enforce such rights, benefits and privileges (including exculpatory rights and rights to indemnification) directly, without the consent or joinder of any other Person, against any or all Loan Parties and the Lenders, (ii) such rights, benefits and privileges (including exculpatory rights and rights to indemnification) shall not be modified or amended without the consent of such sub agent, and (iii) such sub agent shall only have obligations to Administrative Agent and not to any Loan Party, Lender or any other Person, and no Loan Party, Lender, L/C Issuer or any other Person shall have any rights, directly or indirectly, as a third party beneficiary or otherwise, against such sub agent.
9.06    Resignation of Administrative Agent. The Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuers and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, with the approval of the Borrower unless an Event of Default under Section 8.01(f) or (g) has occurred or is continuing (such approval not to be unreasonably withheld), to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may on behalf of the Lenders and the L/C Issuers, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that if the Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders or the L/C Issuers under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (2) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each L/C Issuer directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in

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this Section). Upon the acceptance of a successor’s appointment as the Administrative Agent, hereunder, and upon the execution and filing or recording of such financing statements, or amendments thereto, and such other instruments or notices, as may be necessary or desirable, or as the Required Lenders may request, in order to continue the perfection of the Liens granted or purported to be granted by the Security Documents, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 10.04 shall continue in effect for the benefit of such retiring Administrative Agent, its sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.
9.07    Non-Reliance on Administrative Agent and Other Lenders .
(a)    Each Lender and L/C Issuer represents and warrants that it has, independently and without reliance upon the Administrative Agent, the Arrangers or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and L/C Issuer also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
(b)    The Administrative Agent shall not have any duty or responsibility, either initially or on a continuing basis, to make any such investigation or any such analysis on behalf of the Lenders or L/C Issuers or to provide any Lender or L/C Issuer with any credit or other information with respect thereto, whether coming into its possession before the making of the Loans or Letters of Credit or at any time or times thereafter, and the Administrative Agent shall not have any responsibility with respect to the accuracy of or the completeness of any information provided to the Lenders or L/C Issuers. Each Lender and L/C Issuer, by delivering its signature page to this Agreement or an Assignment and Assumption and funding its Term Loan on the Closing Date, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be approved by the Administrative Agent, Required Lenders or Lenders, as applicable on the Closing Date.
(c)    Each Lender acknowledges that Borrower and certain Affiliates of the Loan Parties are Eligible Assignees hereunder and may purchase Term Loans hereunder from Lenders from time to time, subject to the restrictions set forth in the definition of “Eligible Assignee” and Sections 2.19 and 2.20.

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9.08    No Other Duties, Etc. Except as expressly set forth herein, none of the bookrunners, Arrangers or other titles listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or an L/C Issuer hereunder. The Administrative Agent shall have only those duties and responsibilities that are expressly specified herein and the other Loan Documents. The Administrative Agent may exercise such powers, rights and remedies and perform such duties by or through its agents or employees. The Administrative Agent shall not have, by reason hereof or any of the other Loan Documents, a fiduciary relationship in respect of any Lender or any other Person; and nothing herein or any of the other Loan Documents, expressed or implied, is intended to or shall be so construed as to impose upon the Administrative Agent any obligations in respect hereof or any of the other Loan Documents except as expressly set forth herein or therein.
9.09    Administrative Agent May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a)    to file a verified statement pursuant to rule 2019 of the Federal Rules of Bankruptcy Procedure that, in its sole opinion, complies with such rule’s disclosure requirements for entities representing more than one creditor;
(b)    to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuers and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuers and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuers and the Administrative Agent under Sections 2.03(i) and (j), 2.09 and 10.04) allowed in such judicial proceeding; and
(c)    to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and each L/C Issuer to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C Issuers, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Section 2.09 and 10.04. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Administrative Agent, its agents and counsel, and any other amounts due the Administrative Agents under Sections 2.09 and 10.04 out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall

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be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Lenders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or any L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
9.10    Guaranty and Collateral Matters.
(a)    Each Secured Party hereby authorizes Administrative Agent or Collateral Trustee, as applicable, on behalf of and for the benefit of Secured Parties, to be the agent for and representative of Secured Parties with respect to the Guaranty, the Collateral and the Security Documents, as applicable; provided that neither the Administrative Agent nor Collateral Trustee shall owe any fiduciary duty, duty of loyalty, duty of care, duty of disclosure or any other obligation whatsoever to any holder of Secured Obligations with respect to any Secured Hedging Agreement. Subject to Section 10.01, without further written consent or authorization from any Secured Party, the Administrative Agent or Collateral Trustee, as applicable, may execute any documents or instruments necessary to (i) in connection with a sale or disposition of assets permitted by this Agreement, release any Liens encumbering any item of Collateral that is the subject of such sale or other disposition of assets or to which the Required Lenders (or such other Lenders as may be required to give such consent under Section 10.01) have otherwise consented or (ii) release any Guarantor from the Guaranty pursuant to Section 10.21 or with respect to which Required Lenders (or such other Lenders as may be required to give such consent under Section 10.01) have otherwise consented.
(b)    The Lenders and L/C Issuers irrevocably authorize the Administrative Agent to release any Guarantor from its obligations under the Guaranty in accordance with the terms of Section 10.21. Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10.
(c)    The Lenders irrevocably authorize the Collateral Trustee, at its option and in its discretion, to release any Lien on any property granted to or held by the Collateral Trustee under any Loan Document in accordance with the terms of Section 10.21. Upon request by the Administrative Agent or the Collateral Trustee at any time, the Required Lenders will confirm in writing the Collateral Trustee’s authority to release its interest in particular types or items of property in accordance with this Section.
9.11    Withholding Tax. To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Without limiting the provisions of Section 3.01, each Lender shall, and does hereby, indemnify the Administrative Agent, and shall make payable in respect thereof within 30 days after demand therefor, against

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any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent by the IRS or any other Governmental Authority as a result of the failure of the Administrative Agent to properly withhold tax from amounts paid to or for the account of any Lender for any reason (including, without limitation, because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding tax ineffective). 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 this Agreement or any other Loan Document against any amount due the Administrative Agent under this Section 9.11. The agreements in this Section 9.11 shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, and the repayment, satisfaction or discharge of all other obligations.
9.12    Intercreditor AgreementsCollateral Trust Agreement, Collateral Matters and Specified Amendments.
(a)    Each Lender (and each Person that becomes a Lender hereunder pursuant to Section 10.06) hereby authorizes and directs the Administrative Agent and the Collateral Trustee to enter into each ofthe Additional Secured Debt Designation (as defined in the Collateral Trust Agreement and any ABL Intercreditor Agreement, as applicable,) on behalf of such Lender needed to effectuate the transactions permitted by this Agreement and agrees that the Administrative Agent and the Collateral Trustee may take such actions on its behalf as is contemplated by the terms of such applicable Intercreditorthe Collateral Trust Agreement. Without limiting the provisions of Sections 9.03 and 10.04, each Lender hereby consents to (i) Goldman SachsJPMorgan Chase Bank USA, N.A. and any successor serving in the capacity of Administrative Agent and agrees not to assert any claim (including as a result of any conflict of interest) against Goldman SachsJPMorgan Chase Bank USA, N.A., or any such successor, arising from the role of the Administrative Agent or other agent under the Security Documents or any such Intercreditor Agreement so long as it is either acting in accordance with the terms of such documents or otherwise has not engaged in bad faith, gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction and (ii) Wilmington Trust, National Association or any such successor, arising from its role as the Collateral Trustee under the Security Documents or any such Intercreditor Agreement so long as it is either acting in accordance with the terms of such documents or otherwise has not engaged in bad faith, gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction. In addition, each of Goldman SachsJPMorgan Chase Bank USA, N.A. and Wilmington Trust, National Association, or any such successors, shall be authorized, without the consent of any Lender, to execute or to enter into amendments of, and amendments and restatements of, the Security Documents, any such Intercreditor Agreement and any additional and replacement intercreditor agreements, in each case, in order to effect the subordination of and to provide for certain additional rights, obligations and limitations in respect of, any Liens required by the terms of this Agreement to be Liens junior to, or pari passu with, the Secured Obligations, that are incurred as permitted by this Agreement, and to establish certain relative rights as between the holders of the Secured Obligations and the holders of the

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Indebtedness secured by such Liens junior or pari passu with the Secured Obligations, including as contemplated by Section 6.16(g) and Section 7.01.
(b)    The Lenders irrevocably authorize the Administrative Agent to enter into any amendment contemplated by Sections 2.15(g), 2.16(e), 6.16(g), and 7.01(t) and any writing which creates a deemed amendment in connection with a Permitted Amendment.
9.13    Certain ERISA Matters.
(a)    Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and itsthe Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:
(i)    such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) of one or more Benefit Plans in connection with the Loans, the Letters of Credit or the Commitments,
(ii)    the prohibited transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect toso as to exempt from the prohibitions of Section 406 of ERISA and Section 4975 of the Code such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
(iii)    (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform with respect to the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14, and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance with respect to the Loans, the Letters of Credit, the Commitments and this Agreement, or
(iv)    such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.
(b)    In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such(2) a Lender has not provided another representation,

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warranty and covenant as provided inin accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, the Arrangers and its their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that:
(i) none of the Administrative Agent, the Arrangers or any of itstheir respective Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any other Loan Document or any documents related hereto or thereto),.
(ii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance with respect to the Loans, the Letters of Credit, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50,000,000, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E),
(iii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in respect of the Obligations),
(iv) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance with respect to the Loans, the Letters of Credit, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans, the Letters of Credit, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and
(v) no fee or other compensation is being paid directly to the Administrative Agent or any of its respective Affiliates for investment advice (as opposed to other services) in connection with the Loans, the Letters of Credit, the Commitments or this Agreement.
(c) The Administrative Agent hereby informs the Lenders that it is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans, the Letters of Credit or the Commitments for an amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the Commitments by such Lender, or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees,

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arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.
Article X.
MISCELLANEOUS
10.01    Amendments, Etc. Except as set forth in Sections 2.15 and 2.16, no amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrower, or any other Loan Party therefrom, shall be effective unless in writing signed by (1) the Required Lenders and the Borrower, or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent (except, in each case, as set forth in clauses (2), (3) and (4) below), (2) [reserved], (3) the Required Facility Lenders and the Borrower and acknowledged by the Administrative Agent in the case of clauses (u) and (v) of the second proviso after clause (h) below and (4) the parties to the Fee Letters in the case of clause (z) of the second proviso after clause (h) below, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall:
(a)    extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02) without the written consent of such Lender; provided, no amendment, modification or waiver of any condition precedent, covenant, Default or Event of Default shall constitute an increase in any Incremental Revolving Commitment of any Lender;
(b)    postpone any date fixed by this Agreement or any other Loan Document for any payment of principal, interest, fees or other amounts due to the Lenders (or any of them) (it being understood that the waiver of, or amendment to the terms of, any mandatory prepayment shall not constitute such a postponement) or any mandatory reduction of the Aggregate Commitments hereunder without the written consent of each Lender directly affected thereby;
(c)    waive, reduce or postpone the principal of, or the stated rate of interest specified herein on, any Loan, or Unreimbursed Amount or (subject to clause (z) of the second proviso to this Section 10.01) any fees or premiums or other amounts payable hereunder without the written consent of each Lender directly affected thereby; provided, however, that, without limiting the effect of clause (h) below or the provisos appearing after clause (h) below, only the consent of the Required Lenders shall be necessary (i) to amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest or Letter of Credit Fees at the Default Rate, (ii) to amend any financial covenant hereunder (or any defined term used therein) (other than Section 7.11 (or any defined term used therein), which shall be subject to the first proviso after clause (h) below) even if the effect of such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder or (iii) to waive, reduce or postpone any scheduled prepayment;

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(d)    change Section 2.13 or Section 8.04 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender adversely affected thereby;
(e)    reduce the principal amount of any reimbursement obligation in respect of Letters of Credit issued under the Incremental Revolving Commitments or extend the stated expiration date of any such Letter of Credit beyond the Incremental Revolving Facility Maturity Date (unless Cash Collateralized pursuant to the terms of Section 2.03(g)) without the written consent of each Incremental Revolving Lender adversely affected thereby;
(f)    change any provision of this Section 10.01 or the definitions of “Required Lenders”, “Required Revolving Lenders” or “Applicable Percentage” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender under the applicable Facility affected thereby; provided, with the consent of the Required Lenders, additional extensions of credit pursuant hereto may be included in the determination of ‘Required Lenders” or “Applicable Percentage” on substantially the same basis as the Commitments and the Term Loans are included on the Closing Date;
(g)    other than as permitted by Section 9.10 and Section 10.21, release (i) all or substantially all of the Guarantors from the Guaranty except as expressly provided in the Loan Documents and except in connection with a “credit bid” undertaken by the Administrative Agent or Collateral Trustee at the direction of the Required Lenders pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code or other sale or disposition of assets in connection with an enforcement action with respect to the Collateral permitted pursuant to the Loan Documents (in which case only the consent of the Required Lenders will be needed for such release) or (ii) all or substantially all of the collateral covered by the Security Documents without the written consent of each Lender; or
(h)    consent to the assignment or transfer by any Loan Party of any of its rights and obligations under any Loan Documents without the written consent of each Lender adversely affected thereby;
provided that (x) for the avoidance doubt, all Lenders shall be deemed directly affected thereby with respect to any amendment described in clauses (f), (g) and (h) and (y) only the consent of the Required Revolving Lenders (and not the consent of the Required Lenders) shall be required to amend or waive the terms of Section 7.11 (and related definitions, if any, solely as used in such provision) or to waive an Event of Default solely as it relates to Section 7.11;
and, provided further, that (ut) any condition set forth in Section 4.02 as to any Borrowing under the Incremental Revolving Facility may be waived by only the Required Revolving Lenders; (vu) any term or provisions of a particular Facility may be amended, waived or otherwise modified with only the consent of the Required Facility Lenders under such Facility, so long as such amendment, waiver or modification does not directly affect the Lenders under any other Facility; (wv) no amendment, modification, termination or waiver of any provision of the Loan Documents, or consent to any departure by any Loan Party therefrom, shall amend, modify or waive this Agreement or the Security Agreement so as to alter the ratable

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treatment of Obligations and Secured Hedging Obligations (including pursuant to Section 8.04) or the definition of “Hedging Obligations,” “Hedging Agreement,” “Obligations,” “Secured Hedging Agreement”, “Secured Hedging Obligations” or “Secured Obligations” (as defined herein or in any applicable Security Documents) in each case in a manner adverse to any Hedge Bank with Secured Hedging Obligations then outstanding without the written consent of any such party; (w) no amendment, waiver or consent shall amend, modify or otherwise affect the rights or duties of any L/C Issuer under the Credit Agreement or under any other Loan Document unless in writing executed by such L/C Issuer; (x) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; (y) no amendment, modification, termination or waiver of any provision of the Loan Documents, or consent to any departure by any Loan Party therefrom, shall (i) amend, modify, terminate or waive any provision hereof relating to the swing line subfacility (if any) provided under the Incremental Revolving Commitments without the consent of the applicable swing line lender; (ii) alter the required application of any repayments or prepayments as between Classes pursuant to Sections 2.05(a) or 2.05(k) without the consent of the Required Facility Lenders of each Class which is being allocated a lesser repayment or prepayment as a result thereof; provided, Required Lenders may waive, in whole or in part, any prepayment so long as the application, as between Classes, of any portion of such prepayment which is still required to be made is not altered; or (iii) amend, modify, terminate or waive any obligation of Lender relating to the purchase of participations in Letters of Credit issued under the Incremental Revolving Commitments without the written consent of the Administrative Agent and the applicable L/C Issuer and (z) each Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties to the applicable Fee Letter. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that (i) the Commitment of such Lender may not be increased or extended and (ii) the principal of any Loan owed to such Lender may not be reduced without the consent of such Lender.
Notwithstanding the foregoing, the Borrower and the Administrative Agent may amend this Agreement and the other Loan Documents (and may authorize the Collateral Trustee to amend the Collateral Trust Agreement) without the consent of any Lender (a) to cure any ambiguity, omission, mistake, error, defect or inconsistency (as reasonably determined by the Administrative Agent), so long as such amendment, modification or supplement does not adversely affect the rights of any Lender or the Lenders shall have received at least five Business Days’ prior written notice thereof and the Administrative agent shall not have received, within five Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment, (b) to add a Guarantor with respect to the Loans or collateral to secure the Loans or (c) to make administrative changes that do not adversely affect the rights of any Lender (including as contemplated by Section 2.15(d)(v), 2.16(d)(v) and the definition of Permitted Amendments). In addition, the Administrative Agent, without the consent of any Lender, shall be permitted to enter into (and direct the Collateral Trustee, as applicable, to enter into) any amendments, waivers, modifications or supplements to any Intercreditorthe Collateral Trust Agreement, if the Administrative Agent would have been permitted hereunder to enter into a new IntercreditorCollateral Trust Agreement which contained the terms set forth in such

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amendment, waiver, modification or supplement, at the time when such amendment, waiver, modification or supplement is entered into.
In addition, notwithstanding the foregoing, in situations not otherwise governed by Sections 2.15 and 2.16, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrower (x) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof (collectively, the “Additional Extensions of Credit”) to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Incremental Revolving Loans and the accrued interest and fees in respect thereof and (y) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and the Required Revolving Lenders; provided, however, that no such amendment shall permit the Additional Extensions of Credit to share in preference to any Facility in the application of any mandatory prepayments without the consent of Required Facility Lender in respect of such Facility (without giving effect to such Extensions of Credit).
The Borrower may, by written notice to the Administrative Agent from time to time, make one or more offers to all Lenders under the applicable Facility to make one or more Permitted Amendments to such Facility pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrower. Such notice shall set forth (a) the terms and conditions of the requested Permitted Amendments and (b) the date on which responses from the applicable Lenders in respect of such Permitted Amendment are required to be received (which shall not be less than three Business Days after the date of such notice). Only those Lenders that consent to such Permitted Amendment (the “Accepting Lenders”) will have the maturity of their applicable Loans and Commitments extended and be entitled to the benefits provided thereby, which shall have effect notwithstanding the pro rata sharing provisions of Section 2.13. The Borrower and each Accepting Lender shall execute and deliver to the Administrative Agent such documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Permitted Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Permitted Amendment, this Agreement shall be deemed amended, as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the terms and provisions of the Permitted Amendment with respect to the Loans and Commitments of the Accepting Lenders (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders in a manner consistent with the other Loans and Commitments under this Agreement or as contemplated by the Permitted Amendment).
The Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender or any L/C Issuer, execute amendments, modifications, waivers or consents on behalf of such Lender or L/C Issuer. Any waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Loan Party in any case shall entitle any Loan Party to any other or further notice or demand in similar or other circumstances.

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Any such waiver and any such amendment or modification pursuant to this Section 10.01 shall be binding upon the Borrower, the Lenders, the L/C Issuers the Administrative Agent and all future holders of the Loans. In the case of any waiver, the Borrower, the Lenders, L/C Issuers and the Administrative Agent shall be restored to their former positions and rights hereunder and under the other Loan Documents, and any Default or Event of Default that is waived pursuant to this Section 10.01 shall be deemed to be cured and not continuing during the period of such waiver.
10.02    Notices; Effectiveness; Electronic Communication.
(a)    Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone, all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail, sent by telecopier (except for any notices sent to the Administrative Agent) as follows or sent by electronic communication as provided in subsection (b) below, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
(i)    if to the Borrower or the Administrative Agent to the address, telecopier number, electronic mail address or telephone number specified for such Person on Schedule 10.02;
(ii)    if to any other Lender, to the address, telecopier number, electronic mail address or telephone number specified on Schedule 10.02 or in its Administrative Questionnaire; and
(iii)    if to any L/C Issuer, to the address, telecopier number, electronic mail address or telephone number specified on Schedule 1 to the Second Amendment or Schedule 1 to the Third Amendment, as applicable10.02 or in its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by telecopier shall be deemed to have been given when received (except that, if not received during normal business hours for the recipient, shall be deemed to have been received at the opening of business on the next business day for the recipient). Notices delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b). Notwithstanding the foregoing, (a) no notice to the Administrative Agent shall be effective until received by the Administrative Agent and (b) any such notice or other communication shall at the request of the Administrative Agent be provided to any sub agent appointed pursuant to Section 9.3(c) as designated by the Administrative Agent from time to time.
(b)    Electronic Communications. Notices and other communications to the Administrative Agent or the Lenders and L/C Issuers hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites, including the Platform) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or L/C Issuer pursuant to Article II if such Lender or L/C Issuers, as applicable, has notified the

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Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent or the Borrower may, in their discretion, agree to accept notices and other communications to the Administrative Agent or the Borrower hereunder by electronic communications pursuant to procedures approved by the Administrative Agent or the Borrower, provided that approval of such procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to the Lenders and L/C Issuers to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.
(c)    The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. Each Loan Party understands that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender, L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s or the Administrative Agent’s transmission of Borrower Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses have resulted from the gross negligence or willful misconduct of such Agent Party, as determined by a final non-appealable judgment of a court of competent jurisdiction; provided, however, that in no event shall the Borrower or any Agent Party have any liability to the Borrower, any Lender, L/C Issuer or any other Person for

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indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages); provided that such waiver shall not limit any Loan Party’s reimbursement or indemnification obligations under Sections 10.04(a) or 10.4(b), respectively. Each Loan Party, each Lender, and the Administrative Agent agrees that the Administrative Agent may, but shall not be obligated to, store any electronic communication on the Platform in accordance with the Administrative Agent’s customary document retention procedures and policies.
(d)    Defaults. Any notice of Default or Event of Default may be provided by telephone if confirmed promptly thereafter by delivery of written notice thereof.
(e)    Change of Address, Etc. The Borrower, the Administrative Agent and any L/C Issuer may change its address, electronic mail address, telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, electronic mail address, telecopier or telephone number for notices and other communications hereunder by notice to the Borrower, the Administrative Agent and any L/C Issuer. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender.
(f)    Reliance by Administrative Agent, L/C Issuers and Lenders. The Administrative Agent, the L/C Issuers and the Lenders shall be entitled to rely and act upon any notices (including telephonic Borrowing Notices) purportedly given by or on behalf of the Borrower, even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
(g)    Private Side Information Contacts. Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States federal and state securities laws, to make reference to information that is not made available through the “Public-Side Information” portion of the Platform and that may contain Private-Side Information. In the event

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that any Public Lender has determined for itself to not access any information disclosed through the Platform or otherwise, such Public Lender acknowledges that (i) other Lenders may have availed themselves of such information and (ii) neither the Borrower nor the Administrative Agent has any responsibility for such Public Lender’s decision to limit the scope of the information it has obtained in connection with this Agreement and the other Loan Documents.
10.03    No Waiver; Cumulative Remedies. No failure by any Lender, any L/C Issuer or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall impair such right, remedy, power or privilege or be construed to be a waiver of any default or acquiescence therein; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder or under any other Loan Document preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided and in the other Loan Documents are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. Any forbearance or failure to exercise, and any delay in exercising, any right, power or remedy hereunder shall not impair any such right, power or remedy or be construed to be a waiver thereof, nor shall it preclude the further exercise of any such right, power or remedy.
10.04    Expenses; Indemnity; Damage Waiver.
(a)    Costs and Expenses. The Borrower shall pay (i) all reasonable and documented out-of-pocket legal and other expenses incurred by the Agents and their respective Affiliates and the Collateral Trustee (including the reasonable and documented fees, charges and disbursements of a single counsel for the Agents and the Arrangers, a single local counsel in each relevant jurisdiction and any special counsel reasonably deemed necessary by the Administrative Agent and a separate counsel for the Collateral Trustee), in connection with the syndication of the credit facilities provided for herein, the preparation, due diligence, negotiation, execution, delivery, administration and enforcement of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable and documented out-of-pocket expenses incurred by any L/C Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable and documented out-of-pocket legal and other expenses (including the cost of any investigation or preparation) incurred by any Agent or any Lender or any L/C Issuer or Collateral Trustee (including the reasonable fees, charges and disbursements of any counsel for any Agent or any Lender or any L/C Issuer, limited to one firm of counsel for all Indemnitees (as defined below), taken as a whole, and if necessary, by a single firm of local counsel in each appropriate jurisdiction for all such Indemnitees, taken as a whole (and, in the case of an actual or perceived conflict of interest where the Indemnified Party affected by such conflict notifies the Borrower of the existence of such conflict, of another firm of counsel for such affected Indemnitees and local counsel for the conflicted party and a separate counsel for the Collateral Trustee), in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including all such reasonable and

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documented out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b)    Indemnification by the Borrower. The Borrower shall indemnify the Agents (and any sub-agent thereof), the Arrangers, each Lender and each L/C Issuer and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities (including any Environmental Liability) and related reasonable and documented out-of-pocket fees and expenses (including the reasonable documented out-of-pocket fees, charges and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee (whether or not such investigation, litigation, claim or proceeding is brought by the Borrower, the Borrower’s equity holders, affiliates or creditors or an Indemnitee and whether or not any such Indemnitee is otherwise a party thereto) or by the Borrower or any other Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration and enforcement of this Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the applicable L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) and (iii) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are found in a final, non-appealable judgment by a court of competent jurisdiction to (x) have resulted from the bad faith, gross negligence or willful misconduct of such Indemnitee (or any of such Indemnitee’s controlled affiliates or any of its or their respective officers, directors, employees, agents, controlling persons or members of any of the foregoing), as determined by a final, non-appealable judgment of a court of competent jurisdiction, (y) result from a claim brought by the Borrower or any other Loan Party against an Indemnitee for material breach of such Indemnitee’s obligations hereunder or under any other Loan Document or (z) have arisen out of or in connection with any claim, litigation, loss or proceeding not involving an act or omission of the Borrower or any of its Related Parties and that is brought by an Indemnitee against another Indemnitee (other than any claims against an Indemnitee in its capacity or in fulfilling its role as an administrative agent or arranger or any similar role under this Agreement or any claims arising out of any act or omission of the Borrower or any of its Affiliates). The Borrower also agrees that no Indemnitee shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Borrower for or in connection with this Agreement or the other Loan Documents, any transactions contemplated hereby or thereby or such Indemnitees’ role or services in connection herewith or therewith, except to the extent that any liability for losses, claims, demands, damages, liabilities or expenses incurred by the Borrower (i) resulted from the bad faith, gross negligence or willful misconduct of such Indemnitee or (ii) resulted from a material breach by such Indemnitee (or any of such Indemnitee’s controlled affiliates or any of its or their respective officers, directors, employees, agents, controlling persons or members of any of the foregoing) of the terms of this

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Agreement or the other Loan Documents (in the case of clauses (i) and (ii), as determined by a court of competent jurisdiction in a final, non-appealable judgment). This Section 10.04(b) shall not apply with respect to Taxes other than any taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
(c)    Reimbursement by Lenders. To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it to the Agents (or any sub-agent thereof), the Arrangers, the L/C Issuers or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agents (or any such sub-agent), the Arrangers, the L/C Issuers or such Related Party, as the case may be, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Agents (or any such sub-agent), the Arrangers or the L/C Issuers in its capacity such, or against any Related Party of any of the foregoing acting for the Agents (or any such sub-agent) or the Arrangers or L/C Issuers in connection with such capacity. In addition, to the extent that the Borrower or the Grantors (as defined in the Collateral Trust Agreement) for any reason fail to indefeasibly pay any amount required under subsection (a) or (b) of this Section or Section 7.12(a) of the Collateral Trust Agreement to be paid by the Borrower or such Grantors to the Collateral Trustee or any Related Party of the Collateral Trustee, each Lender severally agrees to pay to the Collateral Trustee or such Related Party such Lender’s Applicable Percentage (determined as of the time the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount in connection with the Collateral Trustee following a direction of an Act of Required Secured Parties (as defined in the Collateral Trust Agreement) prior to the occurrence of the earlier of the Discharge of Credit Agreement Obligations (as defined in the Collateral Trust Agreement) or the Outstanding Loan Threshold Date (as defined in the Collateral Trust Agreement); provided that such Indemnified Liability (as defined in the Collateral Trust Agreement) was incurred by or asserted against the Collateral Trustee in its capacity as such, or against any Related Party of the Collateral Trustee acting for the Collateral Trustee in connection with such capacity. The obligations of the Lenders under this subsection (c) are subject to the provisions of Section 2.12(d).
(d)    Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable law, no party hereto shall assert, and each hereby waives, any claim against the Borrower and its Affiliates or any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof; provided that such waiver shall not limit any Loan Party’s reimbursement or indemnification obligations under Sections 10.04(a) or 10.4(b), respectively. No Indemnitee referred to in subsection (b) above or the Borrower and its Affiliates shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby, except to the extent such damages result from the gross negligence or willful misconduct of such Indemnitee, as determined by a final, non-appealable judgment of a court of competent jurisdiction.

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(e)    Payments. All amounts due under this Section shall be payable not later than ten Business Days after demand therefor.
(f)    Survival. The agreements in this Section shall survive the resignation of the Agents and the Arrangers or any L/C Issuer, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations and Secured Hedging Obligations. The reimbursement, indemnity and contribution obligations of the Borrower under this Section 10.04 will be in addition to any liability which the Borrower may otherwise have, will extend upon the same terms and conditions to any affiliate of any Indemnitee and the partners, members, directors, agents, employees, and controlling persons (if any), as the case may be, of any Indemnitee and any such affiliate, and will be binding upon and inure to the benefit of any successors and assigns of the Borrower, any Indemnitee, any such affiliate, and any such Person.
10.05    Marshalling; Payments Set Aside. Neither any Agent nor any Lender or Collateral Trustee shall be under any obligation to marshal any assets in favor of any Loan Party or any other Person or against or in payment of any or all of the Obligations. To the extent that any payment by or on behalf of the Borrower is made to the Agents, the Arrangers, any L/C Issuer or any Lender, or the Agents, the Arrangers, any L/C Issuer or any Lender or the Collateral Trustee enforces any security interests or exercises its right of setoff, and such payment or the proceeds of such enforcement or setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Agents, the Arrangers, such L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor or related thereto, shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the applicable OvernightNYFRB Rate from time to time in effect, in the applicable currency of such recovery or payment. The obligations of the Lenders and L/C Issuers under clause (b) of the preceding sentence shall survive Payment in Full and the termination of this Agreement.
10.06    Successors and Assigns.
(a)    Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that no Loan Party may assign or otherwise transfer any of its rights or obligations hereunder, except through a transaction permitted hereunder, without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of this Section.

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Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Agents, the Arrangers, the L/C Issuers and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b)    Assignments by Lenders. Any Lender may at any time sell, assign or transfer to one or more Eligible Assignees, upon the giving of notice to the Borrower and the Administrative Agent, all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans (including for purposes of this subsection (b), participations in L/C Obligations) at the time owing to it or other Obligations); provided that:
(i)    except (a) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it, which such amount is less than the applicable minimum transfer amount set forth below, or (b) in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less $2,500,000 in the case of Incremental Revolving Commitments or Incremental Revolving Loans and shall not be less than $1,000,000100,000 in the case of Term Loan Commitments or Term Loans, unless each of the Administrative Agent and, so long as no Event of Default under Section 8.01(a), (f) or (g) has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); provided that the Borrower shall be deemed to have consented to an assignment unless it shall have objected thereto by written notice to the Administrative Agent within sevenfive (75) Business Days after having received notice thereof; provided, however, that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met; provided, further, that no assignment of Revolving Commitments or Revolving Loans shall be made without the prior written consent (such consent not to be unreasonably withheld or delayed) of the L/C Issuers;
(ii)    each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned;
(iii)    the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500 (provided however, that (i) the Administrative Agent may in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment and (ii) the Administrative Agent does hereby waive such processing and recordation fee in connection with an assignment by or to Goldman SachsJPMorgan Chase Bank USA, N.A. or any Affiliate thereof or in the case of an assignee which is already a Lender or is an affiliate or Approved

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Fund of a Lender or a Person under common management with a Lender) and the Eligible Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire and such forms, certificate or other evidence, if any, as the assignee under such Assignment and Assumption may be required to deliver pursuant to Section 3.01; and
(iv)    pro rata assignments shall not be required and each assignment shall be of a uniform, and not varying, percentage of all rights and obligations under and in respect of any applicable Loan and related Commitments.
Subject to acceptance and recording thereof in the Register by the Administrative Agent pursuant to subsection (c) of this Section, from and after the closing date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Section 3.01 (subject to the requirements and limitations therein, including the requirements of Section 3.01(e)), 3.04, 3.05 and 10.04 with respect to facts and circumstances occurring prior to the closing date of such assignment. Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section.
In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the Assignment and Assumption shall make such additional payments to Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations, or other compensating actions, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full Applicable Percentage of all Loans. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Each Lender, upon execution and delivery hereof or upon succeeding to an interest in the Commitments and Loans, as the case may be, represents and warrants as of the Closing Date or as of the effective date of such Assignment and Assumption that (i) it is an Eligible Assignee; (ii) it has experience and expertise in the making of or investing in commitments or loans such as the applicable Commitments or Loans, as the case may be and (iii) it will make or invest in, as the case may be, its Commitments or Loans for its own account in the ordinary course and without a view to distribution of such Commitments or Loans within the meaning of the Securities Act or

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the Exchange Act or other federal securities laws (it being understood that, subject to the provisions of this Section 10.06, the disposition of such Commitments or Loans or any interests therein shall at all times remain within its exclusive control).
(c)    Register. The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of (and stated interest on) the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). The Register shall be available for inspection by the Borrower and the L/C Issuers at any reasonable time and from time to time upon reasonable prior notice.
(d)    Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender, to the extent that it has a consent right hereunder, will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in clauses (a), (b), (c), (g) and (h) of the first proviso to Section 10.01 that affects such Participant (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Commitment shall not constitute a change in the terms of such participation, and that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant’s participation is not increased as a result thereof). Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Section 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment, provided, that in the case of Section 3.01, such Participant shall have complied with the requirements of such section (it being understood that the documentation required under Section 3.01(e) shall be delivered to the participating Lender). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; such Participant agrees to be subject to Section 2.13 as though it were a Lender.

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Each Lender that sells a participation, acting for this purpose as a non-fiduciary agent (solely for tax purposes) of the Borrower, shall maintain a register for the recordation of the names and addresses of the Participants and principal amount of (and stated interest on) each Participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that the relevant parties, acting reasonably and in good faith, determine that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Treasury Regulations Section 5f.103-1(c) of the United Statesand Proposed Treasury Regulations Section 1.163-5(b) (or any amended or successor version). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender and each Loan Party shall treat each Person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of such participation for all purposes of this Agreement, notwithstanding notice to the contrary.
(e)    Limitation upon Participant Rights. A Participant shall not be entitled to receive any greater payment under Section 3.01, 3.04 or 3.05 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. No Participant shall be entitled to the benefits of Section 3.01 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 3.01(e) as though it were a Lender.
(f)    Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note(s), if any) to secure obligations of such Lender to secure obligations to a Federal Reserve Bank or other central bank having jurisdiction over such Lender; 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; provided further, that in no event shall the applicable Federal Reserve Bank, pledgee or trustee, be considered to be a “Lender” or be entitled to require the assigning Lender to take or omit to take any action hereunder.
(g)    Electronic Execution of Assignments. The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state Laws based on the Uniform Electronic Transactions Act.
(h)    Resignation as L/C Issuer. Notwithstanding anything to the contrary contained herein, any L/C Issuer may, upon (A) 30 days’ notice to the Borrower and the Lenders (or such shorter time as the applicable resigning L/C Issuer, successor L/C Issuer, Borrower and Administrative Agent may agree) and (B) the appointment of a successor L/C Issuer and

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satisfaction of the requirements of the penultimate sentence of this Section 10.06(h), resign as L/C Issuer. In the event of notice of any such resignation as L/C Issuer, the Borrower shall be entitled to appoint from among the Incremental Revolving Lenders (or a Person who will become an Incrementala Revolving Lender) and their Affiliates a successor L/C Issuer who agrees to assume all such rights, powers, privileges and duties of the resigning L/C Issuer, including with respect to its L/C Issuance Limit; provided, however, that no failure by the Borrower to appoint any such successor shall affect the resignation of such L/C Issuer if the resigning L/C Issuer finds a replacement L/C Issuer that is an Eligible L/C Issuer or, if not an Eligible L/C Issuer, that is reasonably acceptable to the Borrower (such acceptance not to be unreasonably withheld or delayed) who agrees to assume all such rights, powers, privileges and duties of the resigning L/C Issuer, including with respect to its L/C Issuance Limit). If an L/C Issuer resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of an L/C Issuer hereunder with respect to Letters of Credit and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Loans, fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c) and issue Letters of Credit pursuant to Section 2.03). Upon the appointment of a successor L/C Issuer, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the resigning L/C Issuer, including with respect to its L/C Issuance Limit, (b) the resigning L/C Issuer shall be discharged from all of its respective duties and obligations hereunder or under the other Loan Documents, in its capacity as an L/C Issuer, and (c) the successor L/C Issuer shall issue Letters of Credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements reasonably satisfactory to the resigning L/C Issuer and the Borrower (such acceptance not to unreasonably withheld or delayed) to effectively assume the obligations of such L/C Issuer with respect to such Letters of Credit. In lieu of the appointment of a successor L/C Issuer pursuant to this Section 10.06(h), the Borrower may appoint one or more successor L/C Issuers to satisfy the requirements of this Section 10.06(h).
(i)    Notwithstanding any other provision in the Loan Documents, any Lender may, at any time, assign all or a portion of its rights and obligations with respect to Term Loans, Incremental Term Loans and Refinancing Term Loans under this Agreement to the Borrower through Dutch auctions in accordance with Section 2.19 and open market purchases in accordance with Section 2.20.
10.07    Treatment of Certain Information; Confidentiality. Each of the Agents, Arrangers, the Lenders and L/C Issuers agrees that it will treat as confidential (to the extent clearly identified at the time of delivery as confidential) all information provided to it hereunder or under any other Loan Document by or on behalf of the Borrower or any of its Subsidiaries or Affiliates (collectively, “Information”) in accordance with the Agents’, Arrangers’, the Lenders’ and the L/C Issuers’ applicable customary procedures for handling confidential information of such nature, except to the extent such Information (a) is publicly available or becomes publicly available other than by reason of disclosure by the Agents, Arrangers, the Lenders or the L/C Issuers, any of their respective affiliates or representatives in violation of this Agreement or the other Loan Documents, (b) was received by the Agents, Arrangers, the Lenders or the L/C Issuers from a source (other than the Borrower or any of its affiliates, advisors, members, directors, employees, agents or other representatives) not known by the Agents, Arrangers, the Lenders and the L/C Issuers to be prohibited from disclosing such Information to such Person by a legal, contractual or fiduciary obligation to the Borrower

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and (c) was already in the Agents’, Arrangers’, the Lenders’ and the L/C Issuers’ possession from a source other than the Borrower or any of its affiliates, advisors, members, directors, employees, agents or other representatives or is independently developed by such Person without the use of or reference to any such Information; provided, however, that nothing herein will prevent the Agents, Arrangers, the Lenders and the L/C Issuers from disclosing any such Information (including Information regarding Disqualified Institutions) (a) pursuant to the order of any court or administrative agency or in any pending legal or administrative proceeding, or otherwise as required by applicable Law or compulsory legal process (in which case such Person agrees to inform the Borrower promptly thereof to the extent not prohibited by law), (b) upon the request or demand of any regulatory authority or any self-regulatory authority having jurisdiction over such Person or any of its affiliates, (c) to such Person’s affiliates and their respective officers, directors, partners, members, employees, legal counsel, independent auditors and other experts or agents who need to know such Information and on a confidential basis, (d) to potential and prospective Lenders, assignees, participants and any direct or indirect contractual counterparties to any Hedging Agreementswap or derivative transaction relating to the Borrower orand its obligations under this Agreement (other than Disqualified Institutions), in each case, subject to such recipient’s agreement (which agreement may be in writing or by “click through” agreement or other affirmative action on the part of the recipient to access such Information and acknowledge its confidentiality obligations in respect thereof pursuant to customary syndication practice) to keep such Information confidential on substantially the terms set forth in this Section 10.07, (e) to ratings agencies who have agreed to keep such Information confidential on terms no less restrictive than this Section 10.07 in any material respect or otherwise on terms acceptable to the Borrower in connection with obtaining ratings of the Term Loans, (f) for purposes of establishing a “due diligence” defense, (g) on a confidential basis, to the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Loans or (h) disclosures 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. In addition, the Agents may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry, and service providers to the Agents in connection with the administration and management of this Agreement and the other Loan Documents.
Each of the Agents, the Arrangers, the Lenders and the L/C Issuers acknowledges that (a) the Information may include material non-public information concerning the Borrower or a Subsidiary, the Loan Parties and their Related Parties or their respective securities, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with those procedures and applicable Laws, including Federal and state securities laws. All information, including requests for waivers and amendments, furnished by the Borrower or the Administrative Agent pursuant to, or in the course of administering, this Agreement will be syndicate-level information, which may contain material non-public information concerning the Borrower, the Loan Parties and their Related Parties or their respective securities. Accordingly, each Lender represents to the Borrower and the Administrative Agent that it has identified in its Administrative Questionnaire a credit contact who may

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receive information that may contain material non-public information in accordance with its compliance procedures and applicable Laws, including Federal and state securities laws.
10.08    Right of Setoff. In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, upon the occurrence of any Event of Default or at maturity each Lender and L/C Issuer is hereby authorized by each Loan Party at any time or from time to time subject to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed), without notice to any Loan Party or to any other Person (other than the Administrative Agent), any such notice being hereby expressly waived, to set off and to appropriate and to apply any and all deposits (general or special, including Indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including trust accounts) and any other Indebtedness at any time held or owing by such Lender or L/C Issuer to or for the credit or the account of any Loan Party against and on account of the obligations and liabilities of any Loan Party to such Lender or L/C Issuer hereunder, including all claims of any nature or description arising out of or connected hereto, irrespective of whether or not (a) such Lender or L/C Issuer shall have made any demand hereunder or (b) the principal of or the interest on the Loans or any other amounts due hereunder shall have become due and payable pursuant to Article II and although such obligations and liabilities, or any of them, may be contingent or unmatured; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Sections 2.18 and 8.04 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 Administrative Agent, the Lenders and the L/C Issuers, and (y) 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 setoff. The rights of each Lender, L/C Issuer and their respective Affiliates under this Section 10.08 are in addition to other rights and remedies (including other rights of setoff) that such Lender or L/C Issuer or their respective Affiliates may have. Each Lender and L/C Issuer agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.
10.09    Usury Savings Clause. Notwithstanding any other provision herein, the aggregate interest rate charged with respect to any of the Obligations, including all charges or fees in connection therewith deemed in the nature of interest under applicable law shall not exceed the Highest Lawful Rate. If the rate of interest (determined without regard to the preceding sentence) under this Agreement at any time exceeds the Highest Lawful Rate, the outstanding amount of the Loans made hereunder shall bear interest at the Highest Lawful Rate until the total amount of interest due hereunder equals the amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect. In addition, if when the Loans made hereunder are repaid in full the total interest due hereunder (taking into account the increase provided for above) is less than the total amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect, then to the extent permitted by law, the Borrower shall pay to the Administrative Agent an amount equal to the difference between the amount of interest paid and the amount of interest which would have been paid if the Highest

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Lawful Rate had at all times been in effect. Notwithstanding the foregoing, it is the intention of Lenders and the Borrower to conform strictly to any applicable usury laws. Accordingly, if any Lender contracts for, charges, or receives any consideration which constitutes interest in excess of the Highest Lawful Rate, then any such excess shall be cancelled automatically and, if previously paid, shall at such Lender’s option be applied to the outstanding amount of the Loans made hereunder or be refunded to the Borrower.
10.10    Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof; provided that the provisions contained in the Fee Letters and that certain CommitmentEngagement Letter dated January 11, 2017,September 4, 2019 by and among Goldman Sachs Bank USA, JPMorgan Chase Bank, N.A., Credit Suisse Securities (USA) LLC, Credit Suisse AG, Cayman Islands Branch, Macquarie Capital (USA) Inc., Macquarie Capital Funding LLCGoldman Sachs Bank USA, BMO Capital Markets Corp., Credit Suisse Loan Funding LLC, Deutsche Bank Securities Inc., Regions Capital Markets, BofA Securities, Inc. and Peabody Energy Corporation which by their terms survive the execution and effectiveness of this Agreement and the other Loan Documents shall survive and not be superseded by this Agreement and the other Loan Documents. Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging means (i.e., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.
10.11    Survival of Representations, Warranties and Agreements. All representations, warranties and agreements made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof and the funding of any Borrowing. Such representations, warranties and agreements have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding. Notwithstanding anything herein or implied by law to the contrary, the agreements of each Loan Party set forth in Sections 3.01, 3.04, 3.05, 10.04(a), 10.04(b) and 10.08 and the agreements of Lenders set forth in Sections 2.13, 9.03 and 10.04(c) shall survive the payment of the Loans and the termination hereof.
10.12    Severability. If any provision of this Agreement or the other Loan Documents or any obligation hereunder or under any other Loan Document is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining

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provisions or obligations of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions or obligations with valid provisions or obligations the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions or obligations. The invalidity of a provision or obligation in a particular jurisdiction shall not invalidate or render unenforceable such provision or obligation in any other jurisdiction.
10.13    Replacement of Lenders. If (a) any Lender requests compensation under Section 3.04, (b) the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, (c) any Lender is at such time a Defaulting Lender or has given notice pursuant to Section 3.02 or (d) any Lender becomes a “Nonconsenting Lender” (hereinafter defined), then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to (and such Lender shall) assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.06), all of its interest, rights and obligations under this Agreement and the related Loan Documents to an assignee selected by the Borrower that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:
(a)    the Administrative Agent shall have received the assignment fee specified in Section 10.06(b) (provided however, that the Administrative Agent may in its sole discretion elect to waive such processing and recordation fee in the case of any assignment);
(b)    such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);
(c)    in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter;
(d)    such assignment does not conflict with applicable Laws, and
(e)    neither the Administrative Agent nor any Lender shall be obligated to be or to find the assignee.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply. In the event that (x) the Borrower or the Administrative Agent has requested the Lenders to consent to a departure or waiver of any provisions of the Loan Documents or to agree to any amendment thereto and (y) the Required Lenders, Required Revolving Lenders or Required Facility Lenders, as applicable, have agreed to such consent, waiver or amendment, then any such Lender, who does not agree to such consent, waiver or amendment and whose consent would otherwise be required for such departure, waiver

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or amendment, shall be deemed a “Nonconsenting Lender.” Any such replacement shall not be deemed a waiver of any rights that the Borrower shall have against the replaced Lender.
Each Lender agrees that if the Borrower exercises its option hereunder to cause an assignment by such Lender as a Nonconsenting Lender or otherwise pursuant to this Section 10.13, such Lender shall, promptly after receipt of written notice of such election, execute and deliver all documentation necessary to effectuate such assignment in accordance with Section 10.06. In the event that a Lender does not comply with the requirements of the immediately preceding sentence within one Business Day after receipt of such notice, each Lender hereby authorizes and directs the Administrative Agent to execute and deliver such documentation as may be required to give effect to an assignment in accordance with Section 10.06 on behalf of a Nonconsenting Lender or Lender replaced pursuant to this Section 10.13, and any such documentation so executed by the Administrative Agent shall be effective for purposes of documenting an assignment pursuant to Section 10.06.
10.14    Governing Law; Jurisdiction; Etc.
(a)    GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.
(b)    CONSENT TO JURISDICTION. SUBJECT TO CLAUSE (E) OF THE FOLLOWING SENTENCE, ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT OF OR RELATING HERETO OR ANY OTHER LOAN DOCUMENTS, OR ANY OF THE OBLIGATIONS, SHALL BE BROUGHT IN ANY FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN THE BOROUGH OF MANHATTAN OR, IF THAT COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, IN ANY STATE COURT LOCATED IN THE CITY AND COUNTY OF NEW YORK.  BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH LOAN PARTY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE (SUBJECT TO CLAUSE (E) BELOW) JURISDICTION AND VENUE OF SUCH COURTS; (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE LOAN PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 10.02; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE LOAN PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES THAT THE AGENTS, ARRANGERS, COLLATERAL TRUSTEE AND LENDERS

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RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY LOAN PARTY IN THE COURTS OF ANY OTHER JURISDICTION IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER ANY LOAN DOCUMENT OR AGAINST ANY COLLATERAL OR THE ENFORCEMENT OF ANY JUDGMENT, AND HEREBY SUBMITS TO THE JURISDICTION OF, AND CONSENTS TO VENUE IN, ANY SUCH COURT.
10.15    Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 10.15 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
10.16    USA PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies each Loan Party that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of such Loan Party, a Beneficial Ownership Certification and other information that will allow such Lender or the Administrative Agent, as applicable, to identify such Loan Party in accordance with the Act.
10.17    Time of the Essence. Time is of the essence of the Loan Documents.

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10.18    [Reserved].
10.19    No Advisory or Fiduciary Responsibility. Each Loan Party agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Agent, Arranger, Lender or L/C Issuer, on the one hand, and such Loan Party, its stockholders or its affiliates, on the other. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by the Agents and the Arrangers and the transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Borrower and their Affiliates, on the one hand, and the Agents and the Arrangers, on the other hand, (B) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) each Agent, each Arranger, each Lender and each L/C Issuer is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for any Loan Party, its management, stockholders, creditors or any of its affiliates or any other Person with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Lender has advised, is currently advising or will advise any Loan Party, its stockholders or its Affiliates on other matters) or any other obligation to any Loan Party except the obligations expressly set forth in the Loan Documents and (B) neither any of the Agents nor any of the Arrangers nor any Lender nor any L/C Issuer has any obligation to the Borrower or any of its respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Agents and the Arrangers and the Lenders and the L/C Issuers and their respective Affiliates may be engaged in a broad range of transactions that involve interests that conflict with those of the Borrower and its respective Affiliates, and neither any of the Agents nor any of the Arrangers has any obligation to disclose any of such interests to the Borrower or its respective Affiliates. Each Loan Party agrees that it will not claim that any Lender has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to such Loan Party, in connection with such transaction or the process leading thereto. To the fullest extent permitted by law, the Borrower hereby waives and releases any claims that it may have against the Agents and the Arrangers with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
10.20    [Reserved]
10.21    Release of Liens and Release from Guaranty.

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(a)    The Collateral Trust Agreement shall govern the release of security interests in Collateral as security for the Secured Obligations (A) after Payment in Full and the termination or expiration of all Secured Hedging Agreements (other than obligations and liabilities under Secured Hedging Agreements that have been cash collateralized or as to which other arrangements reasonably satisfactory to the applicable counterparties shall have been made) and payment of any obligations due and owing under all Secured Hedging Agreements, (B) upon any sale or other transfer by any Loan Party of any Collateral that is permitted under this Agreement (other than a sale or other transfer to a Loan Party) or upon effectiveness of any written direction by the consent to the release of the security interest created under any Security Document in any Collateral pursuant to Section 10.01, (C) upon a designation of a Restricted Subsidiary as an Unrestricted Subsidiary permitted hereunder, with respect to the Collateral owned by such Unrestricted Subsidiary, (D) upon the approval, authorization or ratification in writing by the Required Lenders (or such other percentage of the Lenders whose consent is required by Section 10.01) with respect to the release of such Collateral and (E) upon a Guarantor no longer being a Guarantor by virtue of the definition thereof or a transaction permitted hereunder, with respect to the Collateral owned by such Guarantor. After either (v) Payment in Full and the termination or expiration of all Secured Hedging Agreements (other than obligations and liabilities under Secured Hedging Agreements that have been cash collateralized or as to which other arrangements reasonably satisfactory to the applicable counterparties shall have been made) and payment of any obligations due and owing under all Secured Hedging Agreements, (w) upon any sale or other transfer of a Loan Parry that is permitted under this Agreement (other than a sale or other transfer to a Loan Party), (x) upon a designation of a Restricted Subsidiary as an Unrestricted Subsidiary permitted hereunder, (y) upon the approval, authorization or ratification in writing by the Required Lenders (or such other percentage of the Lenders whose consent is required by Section 10.01) with respect to the release of any Guarantor under the terms of the Guaranty or (z) upon a Guarantor no longer being a Guarantor by virtue of the definition thereof or a transaction permitted hereunder, each applicable Guarantor (or, in the case of clause (w) above, the applicable Guarantor so sold or transferred) shall automatically be released from the Guaranty, all without delivery of any instrument or performance of any act by any Person; provided that any such release of guarantee obligations shall be deemed subject to the provision that such guarantee obligations shall be reinstated if after such release any portion of any payment in respect of the Obligations guaranteed thereby shall be rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Borrower or any Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Borrower or any Guarantor or any substantial part of its property, or otherwise, all as though such payment had not been made.
(b)    Notwithstanding anything to the contrary contained herein or in any other Loan Document, in connection with any termination or release pursuant to this Section 10.21, the Administrative Agent and/or Collateral Trustee shall be, and are hereby irrevocably authorized by each Lender (without requirement of notice to or consent of any Lender) to execute and deliver, and shall promptly execute and deliver to the applicable Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence such termination or release (including (1) UCC termination statements and (2) in the case of a release of Mortgages, a partial release) and return to the Borrower, the possessory Collateral that is in the possession of the Collateral Trustee and is the subject of such release.

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(c)    Any execution and delivery of documents, or the taking of any other action, by the Administrative Agent and/or Collateral Trustee pursuant to this Section 10.21 shall be without recourse to or warranty by the Administrative Agent or Collateral Trustee.
10.22    Independence of Covenants. 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 would otherwise be within the limitations of, another covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists.
10.23    Independent Nature of Lenders’ Rights. Nothing contained herein or in any other Loan Document, and no action taken by Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a partnership, an association, a joint venture or any other kind of entity. The amounts payable at any time hereunder to each Lender shall be a separate and independent debt, and each Lender shall be entitled to protect and enforce its rights arising out hereof and it shall not be necessary for any other Lender to be joined as an additional party in any proceeding for such purpose.
10.24    Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a)    the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
(b)    the effects of any Bail-in Action on any such liability, including, if applicable:
(i)    a reduction in full or in part or cancellation of any such liability;
(ii)    a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii)    the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.
10.25    Original Issue Discount. THE TERM LOANS MAY BE TREATED AS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO MATURITY OF THE LOANS MAY BE


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OBTAINED BY WRITING TO THE BORROWER AT ITS ADDRESS SPECIFIED HEREIN.
10.26    Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Hedging Agreements or any other agreement or instrument that is a QFC (such support “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.

[Signature pages follow]
As used in this Section 10.26, the following terms have the following meanings:

(a)    “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
(b)    “Covered Entity” means any of the following:
(i)    a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);

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(ii)    a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii)    a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
(c)    “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
(d) “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).

189
NAI-1504047260v2
US-DOCS\110323336.25



[Include each Schedule to be updated as of the Seventh Amendment Effective Date]




NAI-1504047260v2
US-DOCS\110323336.25



Schedule 1.01(a)
to Credit Agreement

GUARANTORS
American Land Development, LLC
American Land Holdings of Colorado, LLC
American Land Holdings of Illinois, LLC
American Land Holdings of Indiana, LLC
American Land Holdings of Kentucky, LLC
Big Ridge, Inc.
BIG SKY COAL COMPANY
BTU WESTERN RESOURCES, INC.
COALSALES II, LLC
Conservancy Resources, LLC
El Segundo Coal Company, LLC
Hayden Gulch Terminal, LLC
Hillside Recreational Lands, LLC
KAYENTA MOBILE HOME PARK, INC.
Kentucky United Coal, LLC
Moffat County Mining, LLC
New Mexico Coal Resources, LLC
NGS Acquisition Corp., LLC
Peabody America, LLC
Peabody Arclar Mining, LLC
Peabody Asset Holdings, LLC
Peabody Bear Run Mining, LLC
Peabody Bear Run Services, LLC
Peabody Caballo Mining, LLC
Peabody Cardinal Gasification, LLC
Peabody China, LLC
Peabody COALSALES, LLC
Peabody COALTRADE, LLC
Peabody Colorado Operations, LLC
Peabody Colorado Services, LLC
Peabody Coulterville Mining, LLC
PEABODY DEVELOPMENT COMPANY, LLC
Peabody Electricity, LLC
Peabody Employment Services, LLC
Peabody Energy Corporation
PEABODY GATEWAY NORTH MINING, LLC
Peabody Gateway Services, LLC
Peabody Global Funding, LLC





PEABODY HOLDING COMPANY, LLC
Peabody IC Funding Corp.
Peabody Illinois Services, LLC
Peabody Indiana Services, LLC
Peabody International Holdings, LLC
Peabody International Investments, Inc.
Peabody International Services, Inc.
Peabody Investments Corp.
Peabody Midwest Management Services, LLC
PEABODY MIDWEST MINING, LLC
Peabody Midwest Operations, LLC
Peabody Midwest Services, LLC
Peabody Mongolia, LLC
Peabody Natural Gas, LLC
Peabody Natural Resources Company
Peabody New Mexico Services, LLC
Peabody Operations Holding, LLC
Peabody Powder River Mining, LLC
Peabody Powder River Operations, LLC
Peabody Powder River Services, LLC
Peabody Rocky Mountain Management Services, LLC
Peabody Rocky Mountain Services, LLC
Peabody Sage Creek Mining, LLC
Peabody School Creek Mining, LLC
Peabody Services Holdings, LLC
Peabody Southeast Mining, LLC
Peabody Twentymile Mining, LLC
PEABODY VENEZUELA COAL CORP.
Peabody Venture Fund, LLC
PEABODY WESTERN COAL COMPANY
Peabody Wild Boar Mining, LLC
Peabody Wild Boar Services, LLC
Peabody Williams Fork Mining, LLC
Peabody Wyoming Services, LLC
Peabody-Waterside Development, L.L.C.
PEC Equipment Company, LLC
SAGE CREEK HOLDINGS, LLC
Sage Creek Land & Reserves, LLC
Seneca Coal Company, LLC
Seneca Property, LLC
Shoshone Coal Corporation
TWENTYMILE COAL, LLC
United Minerals Company, LLC





Schedule 1.01(b)
to Credit Agreement


UNRESTRICTED SUBSIDIARIES
    
Middlemount Coal Pty Ltd
Middlemount Mine Management Pty Ltd
Newhall Funding Company (MBT)
P&L Receivables Company, LLC
Ribfield Pty. Ltd
Sterling Centennial Missouri Insurance Corporation
PRB-CO JV, LLC







Schedule 1.01(c)
to Credit Agreement


EXCLUDED EQUITY INTERESTS
None.








Schedule 1.01(d)
to Credit Agreement


REAL PROPERTY MARKETED FOR SALE
Illinois
 
 
Tract
County
Acres (Approximate)
McDonough County-Tract 5
McDonough
76
McDonough County-Tract 5A
McDonough
40
McDonough County-Tract 21
McDonough
44
Saline County-Tract 21
Saline
119
Saline County-Tract 23
Saline
81
Saline County-Tract 24
Saline
109
Saline County-Tract 26
Saline
80
Saline County-Tract 27
Saline
80
Saline County-WH Rail Loop
Saline
170
Saline County-CG RBW #11A
Saline
5
Gallatin County – Tract 13
Gallatin
43
Gallatin County – Tract 3
Gallatin
600
Gallatin County – Tract 4
Gallatin
630
Gallatin County – Tract 5
Gallatin
188
Gallatin County – Tract 6C
Gallatin
139
Gallatin County – Tract 7
Gallatin
115
Gallatin County – Tract 10A
Gallatin
198
Gallatin County – Tract 10B
Gallatin
94
Gallatin County – Tract 11A
Gallatin
165
Gallatin County – Tract 11B
Gallatin
125
Gallatin County – Tract 11C
Gallatin
138





Gallatin County – Tract 12A
Gallatin
213
Gallatin County – Tract 12B
Gallatin
96
Gallatin County – Tract 25
Gallatin
55
Gallatin County – Tract 26
Gallatin
40
 
Total
3,643
 
 
 
Indiana:
 
 
Tract
County
Acres (Approximate)
Clay County-Tract 3
Clay
49
Daviess County-Tract 1
Daviess
88
Daviess County-Tract 2
Daviess
8
Daviess County-Tract 4
Daviess
41
Daviess County-Tract 5
Daviess
157
Daviess County-Tract 12
Daviess
501
Greene County-Tract 26A
Greene
158
Greene County-Tract 26B
Greene
191
Greene County-Tract 28
Greene
120
Greene County-Tract 29
Greene
170
Greene County-Tract 30
Greene
200
Greene County-Tract 31
Greene
272
Greene County-Tract 1
Greene
1
Greene County-Tract 2A
Greene
31
Greene County-Tract 2B
Greene
1
Greene County-Tract 2C
Greene
5
Greene County-Tract 4
Greene
30
Greene County-Tract 6
Greene
2





Greene County-Tract 7
Greene
164
Greene County-Tract 9
Greene
8
Greene County-Tract 10
Greene
3
Greene County-Tract 13
Greene
32
Knox County-Tract 8
Knox
402
Knox County-Tract 11
Knox
211
Knox County-Tract 14
Knox
101
Knox County-Tract 21
Knox
103
Knox County-Tract 22
Knox
52
Knox County-Tract 23
Knox
125
Knox County-Tract 50
Knox
0
Knox County-Tract 55
Knox
48
Vigo County-Tract RR 3
Vigo
32
Vigo County-Tract RR 4
Vigo
2
Vigo County-Tract RR 5
Vigo
10
Vigo County-Tract 5
Vigo
27
Vigo County-Tract 7
Vigo
9
Vigo County-Tract 8
Vigo
199
Vigo County-Tract 11
Vigo
1
Vigo County-Tract 17
Vigo
8
Sullivan County-Tract 1
Sullivan
1
Sullivan County-Tract 2
Sullivan
7
Sullivan County-Tract 8
Sullivan
20
Sullivan County-Tract 16
Sullivan
429
Sullivan County-Tract 17
Sullivan
1,247
Sullivan County-Tract 19
Sullivan
655





Sullivan County-Tract 20
Sullivan
575
Sullivan County-Tract 22
Sullivan
1,351
Sullivan County-Tract 23
Sullivan
37
Sullivan County-Tract 24
Sullivan
140
Sullivan County-Tract 26
Sullivan
111
Sullivan County-Tract 27A
Sullivan
75
Sullivan County-Tract 28A
Sullivan
29
Sullivan County-Tract 34
Sullivan
40
Sullivan County-Tract 36
Sullivan
146
Sullivan County-Tract 40
Sullivan
20
Sullivan County-Tract 44
Sullivan
34
Sullivan County-Tract 45
Sullivan
4
Sullivan County-Tract 46
Sullivan
1
Sullivan County-Tract 47
Sullivan
81
Sullivan County-Tract 52
Sullivan
15
Sullivan County-Tract 54
Sullivan
99
Sullivan County-Tract 55
Sullivan
141
Sullivan County-Tract 56
Sullivan
157
Sullivan County-Tract 59B
Sullivan
152
Sullivan County-Tract 60
Sullivan
441
Sullivan County-Tract 61
Sullivan
26
Sullivan County-Tract 62
Sullivan
295
Sullivan County-Tract 63
Sullivan
243
Sullivan County-Tract 64A
Sullivan
16
Sullivan County-Tract 66
Sullivan
97
Sullivan County-Tract 68
Sullivan
158





Sullivan County-Tract 70
Sullivan
35
Sullivan County-Tract 71
Sullivan
208
Sullivan County-Tract 72
Sullivan
99
Sullivan County-Tract 73
Sullivan
96
Sullivan County-Tract 74
Sullivan
28
Sullivan County-Tract 75
Sullivan
11
Sullivan County-Tract 78
Sullivan
10
Sullivan County-Tract 79
Sullivan
115
Warrick County-Tract 1
Warrick
163
Warrick County-Tract 4
Warrick
713
Warrick County-Tract 5
Warrick
163
Warrick County-Tract 8
Warrick
191
Warrick County-Tract 9
Warrick
240
Warrick County-Tract 10
Warrick
156
Warrick County-Tract 11
Warrick
40
Warrick County-Tract 12
Warrick
527
Warrick County-Tract 13
Warrick
122
Warrick County-Tract 14
Warrick
410
Warrick County-Tract 15
Warrick
323
Warrick County-Tract 16
Warrick
41
Warrick County-Tract 18
Warrick
130
Warrick County-Tract 19
Warrick
101
Warrick County-Tract 31
Warrick
1
Gibson County – Tract 8
Gibson
39
Gibson County – Tract 9
Gibson
70
Gibson County – Tract 10
Gibson
27





Gibson County – Tract 11
Gibson
15
 
Total
14,479
 
 
 
Kentucky:
 
 
Tract
County
Acres (Approximate)
Ohio County- TR 1 Centertown
Ohio
394
Ohio County-TR 2 Smallhaus
Ohio
390
 
Total
784
 
 
 
Colorado:
 
 
Tract
County
Acres (Approximate)
Grandbouche Ranch
Routt
975
North Grandbouche Ranch
Routt
182
Fish Creek West Fork
Routt
2,973
Fish Creek East Fork
Routt
1,284
Fish Creek East (S of RR)
Routt
179
Eckman Park Ranch
Routt
4,005
Eckman Park Ranch East
Routt
830
Ranch 37 Property
Routt
628
West Trout Creek
Routt
1,399
RC-53 Tract #3
Routt
60
Hayden Dev Tract #1
Routt
5
Hayden Dev Tract #2
Routt
3
Hayden Dev Tract #3
Routt
4
Hayden Dev Tract #4
Routt
5
Hayden Dev Tract #5
Routt
12





Power Ranch
Routt
73
Water Tower Ranch
Routt
137
Loop ranch
Routt
168
Runway Ranch
Routt
125
South Highway Ranch
Routt
42
North Highway Ranch
Routt
24
Ranch 51
Routt
80
North Elk Ranch
Routt
147
Vista Ridge Lot #15
Routt
36
Vista Ridge Lot #16
Routt
36
Vista Ridge Lot #17
Routt
37
Vista Ridge Lot #19
Routt
42
 
Total
13,491







Schedule 1.01(e)
to Credit Agreement
RESERVE AREAS
RESERVE AREA
State
AIR QUALITY, 1620
Indiana
AREA SOUTH OF MINE No.17, 1314
Illinois
ASHLAND AREA, 1266
Montana
ATHENS NO 4 MENARD CO. - IL., 1197
Illinois
AUBURN SAGAMON CO., IL, 1450
Illinois
BELLEVILLE UNDERGROUND – CARLYLE, 1310
Illinois
BELLEVILLE UNDERGROUND – ELKTON, 1310
Illinois
BELLEVILLE UNDERGROUND – SWANWICK, 1310
Illinois
BEN HUR, 1232
Oklahoma
BIG ELK, 1226
Colorado
BOND COUNTY AREA, 1315
Illinois
BROUILLETTS, 1534
Indiana
BUCK CREEK, 1586
Illinois
BUFFALO, 0886
Wyoming
CANON CITY, 2794
Colorado
CARMI NORTH, 1121
Illinois
CRAWFORD COUNTY, KS, 2796
Kansas
DALE MINE WILLIAMSON CO.-IL., 1198
Illinois
DANVILLE, 1170
Illinois
DIVERNON UNDERGROUND, 1312
Illinois
DIVIDE, 2788
New Mexico
DIXON-MANITOU, 1424
Kentucky
DRY CREEK UNDERGROUND, 0314
Colorado
EAGLE #3 AREA, 1991
Illinois
EAGLE U/G #1, 1271
Illinois
EDEN SURFACE, 1166
Illinois
EMPIRE, 2003
Colorado
FARMERSBURG, 1642
Indiana
FAYETTEVILLE AREA U.G. - IL., 0193
Illinois
FRANCISCO SURFACE, 1632
Illinois
FULTON COUNTY - FULTON CO IL, 1199
Illinois
GALLO WASH, 2792
New Mexico
GILLESPIE, 1182
Illinois
GIRARD, 1587
Illinois
GLASFORD (UG & Surface IL, 1321
Illinois
GRASSY CREEK, 1523
Illinois
GREENFIELD, 1162
Illinois
HENDERSON AREA KY, 1137
Kentucky
HYMERA, 1680
Indiana
KASKASKIA #1 FAYETTEVILLE IL, 1272
Illinois
KAYENTA MINE AZ, 0252
Arizona
LATTA BBCC, 1675
Indiana





LEON, 2798
New Mexico
MADISON COUNTY, 1595
Illinois
MCKINLEY, 2790
New Mexico
MILLER CREEK / JENLIN, 1638
Indiana
MILLER CREEK NE EEL MINE, 1657
Indiana
MILLER CREEK-KNOX PIT, 1633
Indiana
MINE #11 - CLEAR CREEK, 1011
Illinois
MINE #12 - JOHNSON CITY IL., 1912
Illinois
MINE #16, 1300
Illinois
MINE #18, 1918
Illinois
MINE #21 - STONINGTON IL., 1921
Illinois
MINE #25, 1114
Illinois
MINE #26 - WILLIAMSON CO IL., 1115
Illinois
MINE #3 (WILLIAMSON) - IL., 1113
Illinois
MINE #54 - AUBURN IL., 1954
Illinois
MT. HARRIS (SENECA U.G.) CO, 0261
Colorado
MUHLENBERG COUNTY AREA, 1542
Kentucky
NAVAJO RANCH, 2795
New Mexico
NILWOOD #1-MACOUPIN CNTY, 1306
Illinois
NORTH POWDER RIVER BASIN, 2455
Wyoming
OHIO COUNTY KY, 1544
Kentucky
OLD GLORY - COAL CITY, 1969
Indiana
PANHANDLE NO. 3 AREA, IL, 1318
Illinois
PAWNEE, 1522
Illinois
PAXTON, 1674
Indiana
PIGEON CREEK, 1531
Indiana
PINCKNEYVILLE, 1168
Illinois
POSEY COUNTY, 1418
Indiana
POWDER RIVER BASIN WY, 0455
Wyoming
POWER, 1962
Missouri
RIOLA VERMILION GROVE, 1671
Illinois
ROUND PRAIRIE, 1592
Illinois
S COAL, 2704
Illinois
S. RANDOLPH COUNTY, 1151
Missouri
SAN MIGUEL, 2787
New Mexico
SCHELL-OSAGE, 1108
Missouri
SCOTTLAND/FRONTENAC - UNIVERSAL, 1208
Illinois
SHAWNEETOWN, 1518
Illinois
SHELBYTOWN NO 5 - IL., 1117
Illinois
SOMERVILLE NORTH, 1637
Indiana
ST. ELLEN - O'FALLON, IL, 1319
Illinois
STAR LAKE - PNRC, 2791
New Mexico
STURGIS (U.G.) - UNION CO KY, 1136
Kentucky
TEBO, 1323
Missouri
THOROUGHBRED, 2688
Kentucky
TONGUE, 0889
Wyoming
UTILITY, 1943
Illinois
VANDERBURGH COUNTY, 1473
Indiana





VENEDY / OKAWVILLE, 1173
Illinois
VIGO-VERMILLION CO., 1459
Indiana
VIKING/CORNING, 1626
Indiana
WALKER, 1481
Missouri
WALNUT HILL, 1593
Illinois
WARRICK COUNTY U/G, 1457
Indiana
WEST HARRISBURG, 1274
Illinois
WILDCAT HILLS-COTTAGE GROVE, 1749
Illinois
WILDCAT HILLS / EAGLE VALLEY, 1752
Illinois
YANKEE, 2789
Colorado
YOAST AREA, ROUTT CO., 0429
Colorado








Schedule 1.01(f)
to Credit Agreement

PRB-CO JOINT VENTURE TRANSACTIONS
i.The Borrower shall, and shall cause its Affiliates to, execute all such instruments of assignment, transfer and assumption and take all such other corporate or other actions as are necessary to sell, convey, assign, distribute or otherwise transfer to the Borrower or one or more of Affiliates (other than the Peabody Transferred Subsidiaries (as defined below) all of the right, title and interest of the Peabody Transferred Subsidiaries in or to all of the Excluded Assets (as defined in that certain Implementation Agreement, dated as of June 18, 2019, between PRB-CO Joint Venture and Arch Coal, Inc.);
ii.Peabody Investment Corp. shall form “Ocean Holdings, LLC” as a Delaware limited liability company and a wholly-owned Subsidiary of Peabody Investment Corp. and shall cause Ocean Holdings, LLC to elect to be taxed as a corporation for U.S. federal income tax purposes;
iii.Ocean Holdings, LLC shall form the PRB-CO JV, LLC as a Delaware limited liability company and a wholly-owned Subsidiary of Ocean Holdings, LLC;
iv.BTU Western Resources, Inc. shall convert into a Delaware limited liability company (and will thereafter be known as “Ocean Resources, LLC”);
v.Peabody Powder River Services, LLC and Peabody Powder River Operations, LLC shall elect to be taxed as disregarded entities for U.S. federal income tax purposes;
vi.American Land Holdings of Colorado, LLC shall distribute all of the outstanding equity interests in Sage Creek Holdings, LLC and Twentymile Coal, LLC to American Land Development, LLC;
vii.American Land Development, LLC shall distribute all of the outstanding equity interests in Sage Creek Holdings, LLC and Twentymile Coal, LLC to Peabody Investment Corp.;
viii.Peabody Colorado Operations, LLC shall distribute all of the outstanding equity interests in Peabody Sage Creek Mining, LLC and Peabody Twentymile Mining, LLC to Peabody Operations Holding, LLC;
ix. Peabody Operations Holding, LLC shall distribute all of the outstanding equity interests in Peabody Sage Creek Mining, LLC and Peabody Twentymile Mining, LLC to Peabody Investment Corp.;
x.Peabody Operations Holding, LLC shall distribute all of the outstanding equity interests in Peabody Powder River Operations, LLC to Peabody Investment Corp.; and





xi.Peabody Investment Corp. shall contribute all of the outstanding equity interests in the following entities to Ocean Holdings, LLC:
1.
Sage Creek Holdings, LLC;
2.
Twentymile Coal, LLC;
3.
Peabody Sage Creek Mining, LLC;
4.
Peabody Twentymile Mining, LLC;
5.
Peabody Natural Gas, LLC; and
6.
Peabody Powder River Operations, LLC (each such subsidiary, a “Peabody Transferred Subsidiary”).
xii.Ocean Holdings, LLC shall contribute all of the outstanding equity interests in the following entities to PRB-CO Joint Venture (as defined in that certain Implementation Agreement):
1.
Sage Creek Holdings, LLC;
2.
Twentymile Coal, LLC;
3.
Peabody Sage Creek Mining, LLC;
4.
Peabody Twentymile Mining, LLC;
5.
Peabody Natural Gas, LLC; and
6.
Peabody Powder River Operations, LLC.
xiii.Arch Coal, Inc. shall contribute its assets to be contributed to the PRB-CO Joint Venture pursuant to the Implementation Agreement and receive a 33.5% ownership interest in the PRB-CO Joint Venture.








Schedule 1.01(g)
to Credit Agreement

EXISTING LETTERS OF CREDIT
LC Number
Issuing Bank
Beneficiary
SLC00005194
Commerce Bank
Westchester Fire Insurance Company
SLC00005200
Commerce Bank
Travelers Casualty Insurance Company of America
10000643
Goldman Sachs
Travelers Casualty Insurance Company of America
10000641
Goldman Sachs
Bond Safeguard Insurance Company and/or
Lexon Insurance Company,
Ironshore Specialty Insurance Company,
Ironshore Indemnity, Inc.
40000032
Goldman Sachs
RGGS Land and Minerals Ltd., L.P.
NUSCGS002288
JP Morgan
Atlantic Specialty Insurance Company
NUSCGS003145
JP Morgan
Old Republic Insurance Company
NUSCGS003146
JP Morgan
Old Republic Insurance Company
NUSCGS003198
JP Morgan
Rockwood Casualty Insurance Company










Schedule 2.01
to Credit Agreement

COMMITMENTS
Revolving Commitments under the 2017 Incremental Revolving Facility

Revolving Lender
2017 Revolving Commitment
Macquarie Bank Limited
$25,000,000

Revolving Commitments under the 2019 Refinancing Revolving Facility

Revolving Lender
2019 Revolving Commitment
Goldman Sachs Bank USA
$75,000,000
JPMorgan Chase Bank, N.A.
$75,000,000
Credit Suisse AG, Cayman Islands Branch
$75,000,000
Bank of Montreal, Chicago Branch
$75,000,000
Deutsche Bank AG New York Branch
$75,000,000
Bank of America, N.A.
$50,000,000
Macquarie Bank Limited
$25,000,000
Regions Bank
$75,000,000
Commerce Bank
$40,000,000

Term Loan Commitments

On file with Administrative Agent







Schedule 5.08(b)
to Credit Agreement


FEE OWNED MATERIAL REAL PROPERTY
Material Real Property
State
Twentymile
Colorado
Sage Creek/Cow Camp Underground
Colorado
Area S. of Mine No17
Illinois
Bond County
Illinois
Carlyle East & West
Illinois
Elkton Reserves
Illinois
Gateway North
Illinois
Kaskaskia #1 / Fayetteville
Illinois
Panhandle No 3
Illinois
Wildcat Hills
Illinois
Bear Run
Illinois
Francisco
Indiana
Somerville Central
Indiana
Wild Boar
Indiana
El Segundo
New Mexico
Lee Ranch
New Mexico
North Antelope/Rochelle
Wyoming
Shoal Creek
Alabama







Schedule 5.08(c)
to Credit Agreement


LEASED MATERIAL REAL PROPERTY
Material Real Property
State
Twentymile
Colorado
Sage Creek/Cow Camp Underground
Colorado
Gateway North
Illinois
Wildcat Hills
Illinois
Bear Run
Indiana
Francisco
Indiana
Somerville Central
Indiana
Wild Boar
Indiana
El Segundo
New Mexico
Lee Ranch
New Mexico
Caballo
Wyoming
North Antelope/Rochelle
Wyoming
Rawhide
Wyoming
Shoal Creek
Alabama







Schedule 5.09
to Credit Agreement


ENVIRONMENTAL MATTERS
None.





Schedule 5.13
to Credit Agreement

SUBSIDIARIES
Name of Subsidiary
Jurisdiction of Formation
9 East Shipping Limited
United Kingdom
American Land Development, LLC
Delaware
American Land Holdings of Colorado, LLC
Delaware
American Land Holdings of Illinois, LLC
Delaware
American Land Holdings of Indiana, LLC
Delaware
American Land Holdings of Kentucky, LLC
Delaware
Big Ridge, Inc.
Illinois
Big Sky Coal Company
Delaware
Bowen Basin Coal Joint Venture*
Australia
BTU International B.V.
Netherlands
BTU Western Resources, Inc.
Delaware
Burton Coal Pty Ltd
Australia
Capricorn Joint Venture*
Australia
Carbones Peabody de Venezuela, S.A.
Venezuela
COALSALES II, LLC
Delaware
Complejo Siderurgico Del Lago, CA
Venezuela
Conservancy Resources, LLC
Delaware
Coppabella and Moorvale Joint Venture*
Australia
Dalrymple Bay Coal Terminal Pty Ltd
Australia
Desarrollos Venshelf IV, CA
Venezuela
El Segundo Coal Company, LLC
Delaware
Excel Equities International Pty Ltd
Australia
Excelven Pty Ltd.
British Virgin Islands
Guaniamo Mining Corporation
Venezuela
Half-Tide Marine Pty Ltd
Australia
Hayden Gulch Terminal, LLC
Delaware
Helensburgh Coal Pty Ltd
Australia
Hillside Recreational Lands, LLC
Delaware
Hunter Valley Coal Chain Coordinator Ltd
Australia
Kayenta Mobile Home Park, Inc.
Delaware
Kentucky United Coal, LLC
Indiana
Metropolitan Collieries Pty Ltd
Australia
Middlemount Coal Pty Ltd
Australia
Middlemount Mine Management Pty Ltd
Australia
Millennium Coal Pty Ltd
Australia





Moffatt County Mining, LLC
Delaware
Monto Coal 2 Pty Ltd.
Australia
Monto Coal Joint Venture*
Australia
Moorvale West Joint Venture*
Australia
New Mexico Coal Resources, LLC
Delaware
Newcastle Coal Infrastructure Group Pty Ltd
Australia
Newcastle Coal Shippers Pty Ltd
New South Wales
Newhall Funding Company (MBT)
Massachusetts
NGS Acquisition Corp., LLC
Delaware
North Goonyella Coal Mines Pty Ltd
Australia
North Wambo Pty Ltd
Australia
P&L Receivables Company, LLC
Delaware
Peabody (Bowen) Pty Ltd
Australia
Peabody (Burton coal) Pty Ltd
Australia
Peabody (Kogan Creek) Pty Ltd.
Australia
Peabody (Wilkie Creek) Pty Ltd.
Australia
Peabody America, LLC
Delaware
Peabody Arclar Mining, LLC
Indiana
Peabody Asset Holdings, LLC
Delaware
Peabody Australia Holdco Pty Ltd.
Australia
Peabody Australia Mining Pty Ltd.
Australia
Peabody BB Interests Pty Ltd.
Australia
Peabody Bear Run Mining, LLC
Delaware
Peabody Bear Run Services, LLC
Delaware
Peabody Bistrotel Pty Ltd.
Australia
Peabody Caballo Mining, LLC
Delaware
Peabody Capricorn Pty Ltd.
Australia
Peabody Cardinal Gasification, LLC
Delaware
Peabody China, LLC
Delaware
Peabody CHPP Pty Ltd
Australia
Peabody Coal Venezuela Ltd.
Bermuda
Peabody COALSALES, LLC
Delaware
Peabody COALSALES Pacific Pty Ltd.
Australia
Peabody COALTRADE Asia Private Ltd.
Singapore
Peabody COALTRADE GmbH
Germany
Peabody COALTRADE India Private Limited
India
Peabody COALTRADE International Limited
United Kingdom
Peabody COALTRADE, LLC
Delaware
Peabody Colorado Operations, LLC
Delaware
Peabody Colorado Services, LLC
Delaware
Peabody Coppabella Pty Ltd.
Australia
Peabody Coulterville Mining, LLC
Delaware
Peabody Custom Mining Pty Ltd.
Australia
Peabody Development Company, LLC
Delaware
Peabody Electricity, LLC
Delaware





Peabody Employment Services, LLC
Delaware
Peabody Energy Corporation
Delaware
Peabody Energy Australia Coal Pty Ltd
Australia
Peabody Energy Australia PCI (C&M Equipment) Pty Ltd.
Australia
Peabody Energy Australia PCI (C&M Management) Pty Ltd.
Australia
Peabody Energy Australia PCI Equipment Pty Ltd.
Australia
Peabody Energy Australia PCI Financing Pty Ltd.
Australia
Peabody Energy Australia PCI Mine Management Pty Ltd.
Australia
Peabody Energy Australia PCI Pty Ltd.
Australia
Peabody Energy Australia PCI Rush Pty Ltd.
Australia
Peabody Energy Australia Pty Ltd.
Australia
Peabody Energy Finance Pty Ltd.
Australia
Peabody Energy (Gibraltar) Limited
Gibraltar
Peabody Gateway North Mining, LLC
Delaware
Peabody Gateway Services, LLC
Delaware
Peabody Global Funding, LLC
Delaware
Peabody Global Holdings, LLC
Delaware
Peabody Global Services Pte Ltd.
Singapore
Peabody Gobi LLC
Mongolia
Peabody Holding Company, LLC
Delaware
Peabody Holland BV
Netherlands
Peabody IC Funding Corp.
Delaware
Peabody IC Holdings, LLC
Missouri
Peabody Illinois Services, LLC
Delaware
Peabody Indiana Services, LLC
Delaware
Peabody International (Gibraltar) Ltd.
Gibraltar
Peabody International Holdings, LLC
Delaware
Peabody International Investments, Inc.
Delaware
Peabody International Services, Inc.
Delaware
Peabody Investment & Development Business Services Beijing Co. Ltd.
China
Peabody Investments (Gibraltar) Limited
Gibraltar
Peabody Investments Corp.
Delaware
Peabody MCC (Gibraltar) Limited
Gibraltar
Peabody Midwest Management Services, LLC
Delaware
Peabody Midwest Mining, LLC
Indiana
Peabody Midwest Operations, LLC
Delaware
Peabody Midwest Services, LLC
Delaware
Peabody Mongolia, LLC
Delaware
Peabody Monto Coal Pty Ltd.
Australia
Peabody Moorvale West Pty Ltd.
Australia
Peabody Moorvale Pty Ltd
Australia
Peabody Natural Gas, LLC
Delaware
Peabody Natural Resources Company
Delaware
Peabody New Mexico Services, LLC
Delaware
Peabody Olive Downs Pty Ltd.
Australia





Peabody Operations Holding, LLC
Delaware
Peabody Pastoral Holdings Pty Ltd
Australia
Peabody Powder River Mining, LLC
Delaware
Peabody Powder River Operations, LLC
Delaware
Peabody Powder River Services, LLC
Delaware
Peabody Rocky Mountain Management Services, LLC
Delaware
Peabody Rocky Mountain Services, LLC
Delaware
Peabody Sage Creek Mining, LLC
Delaware
Peabody School Creek Mining, LLC
Delaware
Peabody Services Holdings, LLC
Delaware
Peabody Southeast Mining, LLC
Delaware
Peabody Twentymile Mining, LLC
Delaware
Peabody Venezuela Coal Corp.
Delaware
Peabody Venture Fund, LLC
Delaware
Peabody-Waterside Development, L.L.C.
Delaware
Peabody West Burton Pty Ltd.
Australia
Peabody Western Coal Company
Delaware
Peabody West Rolleston Pty Ltd.
Australia
Peabody West Walker Pty Ltd.
Australia
Peabody Wild Boar Mining, LLC
Delaware
Peabody Wild Boar Services, LLC
Delaware
Peabody Williams Fork Mining, LLC
Delaware
Peabody Wyoming Services, LLC
Delaware
PEC Equipment Company, LLC
Delaware
Port Kembla Coal Terminal Limited
Australia
PT Peabody Coaltrade Indonesia
Indonesia
PT Peabody Mining Services
Indonesia
Ribfield Pty Ltd
Australia
SAGE CREEK HOLDINGS, LLC
Delaware
Sage Creek Land & Reserves, LLC
Delaware
Seneca Coal Company, LLC
Delaware
Seneca Property, LLC
Delaware
Shoshone Coal Corporation
Delaware
Sterling Centennial Missouri Insurance Corporation
Missouri
Transportes Coal Sea de Venezuela, CA
Venezuela
Twentymile Coal, LLC
Delaware
United Minerals Company, LLC
Indiana
Wambo Coal Pty Ltd.
Australia
Wambo Coal Terminal Pty Ltd
Australia
Wambo Open Cut Pty Ltd.
Australia
West/North Burton Joint Venture*
Australia
WICET Holdings Pty Ltd.
Australia





Wilpinjong Coal Pty Ltd
Australia

* Unincorporated joint venture.






Schedule 5.18
to Credit Agreement


INTELLECTUAL PROPERTY
None.






Schedule 5.20
to Credit Agreement


MINES
Company
Name
Mailing Address
Shipping Address
New Mexico Coal Resources, LLC
El Segundo Mine Surface
P.O. Box 757
Grants, NM 87020
22 Miles North Highway 509
Grants, NM 87020
New Mexico Coal Resources, LLC
Lee Ranch Mine Surface
P.O. Box 757
Grants, NM 87020
35 Miles North of Milan
Grants, NM 87020
Peabody Bear Run Mining, LLC
Bear Run Mine Surface
7255 East County Road
600 South
Carlisle, IN 47838
7255 East County Road
600 South
Carlisle, IN 47838
Peabody Colorado Operations, LLC
Twentymile Mine U/G
29515 Routt County Road #27
Oak Creek, CO 80467
29515 Routt County Road #27
Oak Creek, CO 80467
Peabody Midwest Mining, LLC
Francisco Mine U/G
P.O. Box 347
Francisco, IN 47649
1225 North 725 East
Francisco, IN 47649
Peabody Midwest Mining, LLC
Gateway North Mine U/G
P.O. Box 369
Coulterville, IL 62237
13101 Zeigler 11 Road
Coulterville, IL 62237
Peabody Midwest Mining, LLC
Somerville Central Mine U/G
6280 S. 1025 E.
Oakland City, IN 47660
6280 S. 1025 E.
Oakland City, IN 47660
Peabody Midwest Mining, LLC
Wildcat Hills U/G Mine
115 Grayson Lane
Eldorado, IL 62930
115 Grayson Lane
Eldorado, IL 62930
Peabody Powder River Operations, LLC
Caballo Mine Surface
Caller Box 3041
Gillette, WY 82717-3041
2298 Bishop Road
Gillette, WY 82718
Peabody Powder River Operations, LLC
North Antelope Rochelle Mine Surface
Caller Box 3035
Gillette, WY 82717-3035
339A Antelope Road
Wright, WY 82732
Peabody Powder River Operations, LLC
Rawhide Mine Surface
Caller Box 3042
Gillette, WY 82717-3042
12433 North Highway 59
Gillette, WY 82716
Peabody Wild Boar Mining, LLC
Wild Boar Mine Surface
566 Dickeyville Road
Lynnville, IN 47619
566 Dickeyville Road
Lynnville, IN 47619
Peabody Southeast Mining, LLC
Shoal Creek Mine
8488 Nancy Ann Bend Rd. Adger, AL 35006
8488 Nancy Ann Bend Rd. Adger, AL 35006






Schedule 6.18
to Credit Agreement


POST CLOSING COVENANTS
[Reserved]





Schedule 7.01
to Credit Agreement


EXISTING LIENS
Step-in Deed originally between Wilpinjong Coal Pty Ltd and Macquarie Generation (and subsequently vested in AGL Macquarie Pty Limited) dated 11 January 2012 whereby Wilpinjong Coal Pty Ltd charges all of its assets relating to the Wilpinjong mine (subject to certain exclusions) granted to secure the performance by Wilpinjong Coal Pty Ltd of its obligations under a coal supply contract between AGL Macquarie Pty Limited and Wilpinjong Coal Pty Ltd

Liens with respect to cash collateral posted for other Australian obligations including deposits on coal supply contracts, contract step-in deeds, rail line licenses, utility deposits and other obligations of a like nature incurred in the ordinary course of business.






Schedule 7.02
to Credit Agreement

EXISTING INVESTMENTS
I. Joint Ventures
ARQ LIMITED CHANNEL ISLANDS
BOWEN BASIN COAL JOINT VENTURE - unincorporated
CALERA CORPORATION
CARBONES DEL GUASARE S.A.
CARDINAL GASIFICATION CENTER LLC
CAPRICORN JOINT VENTURE - unincorporated
COMPLEJO SIDERURGICO DEL LAGO, CA
COPPABELLA AND MOORVALE JOINT VENTURE - unincorporated
DALRYMPLE BAY COAL TERMINAL PTY LTD
DESARROLLOS VENSHELF IV, CA
ECONO-POWER INTERNATIONAL CORPORATION
EXCELVEN PTY LTD
FUTUREGEN INDUSTRIAL ALLIANCE, INC.
GREAT POINT ENERGY, INC.
GREEN GEN COMPANY LIMITED
GUANIAMO MINING CORPORATION
HUNTER VALLEY COAL CHAIN COORDINATOR LTD
HALF TIDE MARINE PTY LTD
ISLANDS OF WATERSIDE HOMEBUILDING, LLC
ISLANDS OF WATERSIDE, LLC
LRCS LIMITED PARTNERSHIP
MEGA URANIUM LTD
MIDDLEMOUNT COAL PTY LTD
MIDDLEMOUNT MINE MANAGEMENT PTY LTD
MONTO COAL 2 PTY LTD
MONTO COAL JOINT VENTURE - unincorporated
MOUNT THORLEY COAL LOADING PTY LTD
MOORVALE WEST JOINT VENTURE - unincorporated
NCIG HOLDINGS PTY LTD
NEWCASTLE COAL INFRASTRUCTURE GROUP PTY LTD
NEWCASTLE COAL SHIPPERS PTY LTD
NORTH WAMBO PTY LTD
PEABODY BISTROTEL PTY LTD
PEABODY ENERGY AUSTRALIA PCI (C&M EQUIPMENT) PTY LTD
PEABODY ENERGY AUSTRALIA PCI (C&M MANAGEMENT) PTY LTD
PORT KEMBLA COAL TERMINAL LIMITED
RIBFIELD PTY LTD
TRANSPORTES COAL SEA DE VENEZUELA, CA





UNITED WAMBO JOINT VENTURE – unincorporated
WAMBO COAL PTY LTD
WAMBO COAL TERMINAL PTY LTD
WAMBO OPEN CUT PTY LTD
WEST/NORTH BURTON JOINT VENTURE
WEST ROLLESTON JOINT VENTURE
WEST WALKER JOINT VENTURE
WICET HOLDINGS PTY LTD
WYOMING QUALITY HEALTHCARE COALITION, LLC






Schedule 7.03
to Credit Agreement


EXISTING INDEBTEDNESS
Indebtedness arising under Finance Lease liabilities in the aggregate amount of approximately $24.5 million as of June 30, 2019







Schedule 7.05
to Credit Agreement


SPECIFIED DISPOSITIONS
None.





Schedule 7.08
to Credit Agreement


TRANSACTIONS WITH AFFILIATES
None.






Schedule 7.12
to Credit Agreement


BURDENSOME AGREEMENTS
None.





Schedule 10.02
to Credit Agreement


ADMINISTRATIVE AGENT’S OFFICE; CERTAIN ADDRESSES FOR NOTICES

Administrative Agent Address:

JPMorgan Chase Bank, N.A.
383 Madison Avenue
New York, NY 10179
Attn: Peter Predun
Telephone: (212) 270-7005
Fax: (212) 270-5100

with a copy to:

JPMorgan Chase Bank, N.A.
500 Stanton Christiana Rd.
NCC5 / 1st Floor
Newark, DE 19713
Attention: Loan & Agency Services Group
Tel: 1-302-634-8719

Administrative Agent Account:

To: JPMORGAN CHASE BANK
Fed ABA: XXXXXXXX
Money Transfer Account #XXXXXXXX
Attn: LS2 Incoming Account
Reference: Peabody

Ops Contact Information:
Email: namrata.r.nair@chase.com
Fax: 302-634-1417

Legal Name and Address:
JPMORGAN CHASE BANK, N.A.
1111 Polaris Parkway
Columbus, OH 43240
Tax ID: 13 -4994650

Lender Addresses: on file with Administrative Agent

L/C Issuer Addresses: on file with Administrative Agent





Borrower Address:

Peabody Energy Corporation
701 Market Street
St. Louis, Missouri 63101
Attention: Treasurer
Phone: (314) 342-3486
Fax: (314) 588-2731
E-mail: JTichenor@peabodyenergy.com

with a copy to:

Jones Day
901 Lakeside Avenue
Cleveland, OH 44114
Attention: Rachel Rawson
Phone: (216) 586-7276
E-mail: rlrawson@jonesday.com

US Borrower Website:

www.peabodyenergy.com










Exhibit B
Security Agreement Amendment No. 2

Attached.




EXECUTION VERSION

AMENDMENT NO. 2 TO PRIORITY LIEN PLEDGE AND SECURITY AGREEMENT
AMENDMENT NO. 2 TO PRIORITY LIEN PLEDGE AND SECURITY AGREEMENT (this “Amendment No. 2”), dated as of September 17, 2019, by and among PEABODY ENERGY CORPORATION, a Delaware corporation (the “Borrower”), the other Grantors party hereto and WILMINGTON TRUST, NATIONAL ASSOCIATION, as Priority Collateral Trustee (in such capacity, including any permitted successor thereto, the “Priority Collateral Trustee”).
PRELIMINARY STATEMENTS
WHEREAS, the Borrower has entered into that certain Priority Lien Pledge and Security Agreement, dated as of April 3, 2017, among the Borrower, the other Grantors party thereto from time to time, and the Priority Collateral Trustee (as amended by that certain Amendment No. 1 to Priority Lien Pledge and Security Agreement, dated as of June 27, 2018, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to, but not including, the date hereof, the “Security Agreement”); and
WHEREAS, the Borrower has requested that the Security Agreement be amended as set forth herein (the Security Agreement, as amended by this Amendment No. 2, the “Amended Security Agreement”).
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is acknowledged by each party hereto, it is agreed:
SECTION 1.cERTAIN definitions. Capitalized terms used (including in the preamble and recitals hereto) but not defined herein shall have the meanings assigned to such terms in the Amended Security Agreement.
SECTION 2.Amendments.
a.
Clause (i) of the definition of “Excluded Assets” in Section 1.1 of the Security Agreement is hereby amended by replacing the proviso “provided that 65% of the voting Equity Interests and 100% of the non-voting Equity Interests in Peabody Investments (Gibraltar) Limited (or any successor thereto) shall not constitute Excluded Assets;” with the following text:
“provided that (i) 65% of the voting Equity Interests and 100% of the non-voting Equity Interests in Peabody Investments (Gibraltar) Limited (or any successor thereto) and (ii) the Equity Interests in the PRB/CO Joint Venture (as defined in the Credit Agreement) held (directly or indirectly) by the Borrower, in each case, shall not constitute Excluded Assets;”
b.
The definition of “Joint Venture” in Section 1.1 of the Security Agreement is hereby amended and restated to read in its entirety as follows:
““Joint Venture”: means any Person in which the Borrower or its Subsidiaries hold an ownership interest (a) that is not a Subsidiary and (b)

12



which the Borrower or such Subsidiary is a general partner or a joint venturer; provided, however, that Middlemount Coal Pty Ltd shall be considered a Joint Venture for this definition.”
c.
Section 4.11 of the Security Agreement is hereby amended and restated to read in its entirety as follows:
“4.11    [Reserved].”

SECTION 3.Reference to and Effect on the SECURITY Agreement. On and after the Amendment No. 2 Effective Date (as defined below), each reference in the Security Agreement to “this Agreement,” “hereunder,” “hereof” or text of like import referring to the Security Agreement shall mean and be a reference to the Amended Security Agreement.
SECTION 4.Conditions Precedent. The effectiveness of this Amendment No. 2 shall be subject to the satisfaction or waiver of the following conditions precedent (the date on which such conditions precedent are so satisfied or waived, the “Amendment No. 2 Effective Date”):  
a.
The Priority Collateral Trustee shall have received a duly authorized, executed and delivered counterpart of the signature page to this Amendment No. 2 from the Borrower, each other Grantor named on the signature pages hereto and the Priority Collateral Trustee.
b.
The Priority Collateral Trustee shall have received an Officers' Certificate to the effect that this Amendment No. 2 will not result in a breach of any provision or covenant contained in any of the Secured Debt Documents (as defined in the Collateral Trust Agreement), and that this Amendment No. 2 was permitted under Section 7.1 of the Collateral Trust Agreement.
c.
The Priority Collateral Trustee shall have received a customary opinion of Jones Day, counsel to the Borrower and special New York counsel to the other Grantors addressed to the Priority Collateral Trustee and dated the Amendment No. 2 Effective Date to the effect that the execution of this Amendment No. 2 is authorized or permitted by the Collateral Trust Agreement.
d.
The Priority Collateral Trustee shall have received a direction from an Act of Required Secured Parties (as defined in the Collateral Trust Agreement) authorizing and directing the Priority Collateral Trustee to execute and deliver this Amendment No. 2.

13



SECTION 5.Miscellaneous Provisions.
a.
Ratification. This Amendment No. 2 is limited to the matters specified herein and shall not constitute acceptance or waiver, or, to the extent not expressly set forth herein, an amendment or modification, of any other provision of the Security Agreement.
b.
Governing Law; Submission to Jurisdiction; Waivers. Sections 9.11 and 9.12 of the Security Agreement are incorporated by reference herein as if such Sections appeared herein, mutatis mutandis.
c.
Severability. Section 9.8 of the Security Agreement is incorporated by reference herein as if such Section appeared herein, mutatis mutandis.
d.
Counterparts; Headings. This Amendment No. 2 may be executed by one or more of the parties to this Amendment No. 2 on any number of separate counterparts (including by facsimile or other electronic imaging means), and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Amendment No. 2 by facsimile or other electronic transmission (e.g., “pdf” or “tif” format) shall be effective as delivery of a manually executed counterpart of this Amendment No. 2. The section headings used in this Amendment No. 2 are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.
e.
Amendment, Modification and Waiver. This Amendment No. 2 may not be amended nor may any provision hereof be waived except pursuant to a writing signed by each of the parties hereto.
f.
Concerning the Priority Collateral Trustee. Wilmington Trust, National Association is entering into this Amendment No. 2 solely in its capacity as Priority Collateral Trustee, upon the direction of an Act of Required Secured Parties and in reliance on documents delivered to it pursuant to Section 4 hereof. In acting hereunder, the Priority Collateral Trustee shall have all of the rights, privileges and immunities of the Priority Collateral Trustee set forth in the Security Agreement, the Collateral Trust Agreement and the other Priority Lien Documents (as defined in the Collateral Trust Agreement), as though fully set forth herein.
[Remainder of page intentionally blank; signatures begin next page]



14



IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to be duly executed by their respective authorized officers as of the date first above written.


PEABODY ENERGY CORPORATION, as Borrower


By:    
Name:
Title:

[Signature Page to Amendment No. 2 to Priority Lien Pledge and Security Agreement]




AMERICAN LAND DEVELOPMENT, LLC
AMERICAN LAND HOLDINGS OF COLORADO, LLC
AMERICAN LAND HOLDINGS OF ILLINOIS, LLC
AMERICAN LAND HOLDINGS OF INDIANA, LLC
AMERICAN LAND HOLDINGS OF KENTUCKY, LLC
BIG RIDGE, INC.
BTU WESTERN RESOURCES, INC.
COALSALES II, LLC
CONSERVANCY RESOURCES, LLC
EL SEGUNDO COAL COMPANY, LLC
HAYDEN GULCH TERMINAL, LLC
HILLSIDE RECREATIONAL LANDS, LLC
KAYENTA MOBILE HOME PARK, INC.
KENTUCKY UNITED COAL, LLC
MOFFAT COUNTY MINING, LLC
NEW MEXICO COAL RESOURCES, LLC
PEABODY AMERICA, LLC
PEABODY ARCLAR MINING, LLC
PEABODY ASSET HOLDINGS, LLC
PEABODY BEAR RUN MINING, LLC
PEABODY BEAR RUN SERVICES, LLC
PEABODY CABALLO MINING, LLC
PEABODY CARDINAL GASIFICATION, LLC
PEABODY CHINA, LLC
PEABODY COALSALES, LLC
PEABODY COALTRADE, LLC
PEABODY COLORADO OPERATIONS, LLC
PEABODY COLORADO SERVICES, LLC
PEABODY COULTERVILLE MINING, LLC
PEABODY DEVELOPMENT COMPANY, LLC
PEABODY ELECTRICITY, LLC
PEABODY EMPLOYMENT SERVICES, LLC
PEABODY GATEWAY NORTH MINING, LLC


By:                             
Name:
Title:

[Signature Page to Amendment No. 2 to Priority Lien Pledge and Security Agreement]



PEABODY GATEWAY SERVICES, LLC
PEABODY GLOBAL FUNDING, LLC
PEABODY HOLDING COMPANY, LLC
PEABODY ILLINOIS SERVICES, LLC
PEABODY INDIANA SERVICES, LLC
PEABODY INTERNATIONAL INVESTMENTS, INC.
PEABODY INTERNATIONAL SERVICES, INC.
PEABODY INVESTMENTS CORP.
PEABODY MIDWEST MANAGEMENT SERVICES, LLC
 
PEABODY MIDWEST MINING, LLC
PEABODY MIDWEST OPERATIONS, LLC
PEABODY MIDWEST SERVICES, LLC
PEABODY MONGOLIA, LLC
PEABODY NATURAL GAS, LLC
PEABODY NATURAL RESOURCES COMPANY
PEABODY NEW MEXICO SERVICES, LLC
PEABODY OPERATIONS HOLDING, LLC
PEABODY POWDER RIVER MINING, LLC
PEABODY POWDER RIVER OPERATIONS, LLC
PEABODY POWDER RIVER SERVICES, LLC
PEABODY ROCKY MOUNTAIN MANAGEMENT SERVICES, LLC
PEABODY ROCKY MOUNTAIN SERVICES, LLC
PEABODY SCHOOL CREEK MINING, LLC
PEABODY SERVICES HOLDINGS, LLC
PEABODY VENEZUELA COAL CORP.
PEABODY VENTURE FUND, LLC
PEABODY WILD BOAR MINING, LLC
PEABODY WILD BOAR SERVICES, LLC
PEABODY WILLIAMS FORK MINING, LLC
PEABODY WYOMING SERVICES, LLC
PEABODY-WATERSIDE DEVELOPMENT, L.L.C.
PEC EQUIPMENT COMPANY, LLC
SAGE CREEK LAND & RESERVES, LLC
SHOSHONE COAL CORPORATION
TWENTYMILE COAL, LLC
NGS ACQUISITION CORP., LLC

By:                             
Name:
Title:


[Signature Page to Amendment No. 2 to Priority Lien Pledge and Security Agreement]




PEABODY INTERNATIONAL HOLDINGS, LLC

By: Peabody Investments Corp., as its sole member


By:                             
Name:
Title:


PEABODY IC FUNDING CORP.


By:                             
Name:
Title:


BIG SKY COAL COMPANY


By:                                
Name:
Title:


PEABODY SAGE CREEK MINING, LLC
SAGE CREEK HOLDINGS, LLC


By:                             
Name:
Title:


PEABODY TWENTYMILE MINING, LLC

By:                                
Name:
Title:

[Signature Page to Amendment No. 2 to Priority Lien Pledge and Security Agreement]




PEABODY WESTERN COAL COMPANY
SENECA PROPERTY, LLC
UNITED MINERALS COMPANY, LLC


By:                             
Name:
Title:


SENECA COAL COMPANY, LLC


By:                             
Name:
Title:


PEABODY SOUTHEAST MINING, LLC


By:                             
Name:
Title:



[Signature Page to Amendment No. 2 to Priority Lien Pledge and Security Agreement]




PEABODY GLOBAL HOLDINGS, LLC


By:                             
Name:
Title:




[Signature Page to Amendment No. 2 to Priority Lien Pledge and Security Agreement]




WILMINGTON TRUST, NATIONAL ASSOCIATION, solely in its capacity as Priority Collateral Trustee

By
    
    Name:
    Title:
 


[Signature Page to Amendment No. 2 to Priority Lien Pledge and Security Agreement]
Restricted Stock Unit Agreement
ELT Level / Section 16 Officer
2019 Special Award


Exhibit 10.75
PEABODY ENERGY CORPORATION
2017 INCENTIVE PLAN
RESTRICTED STOCK UNIT AGREEMENT
THIS RESTRICTED STOCK UNIT AGREEMENT (the “Agreement”), effective as of September 1, 2019, is made by and between PEABODY ENERGY CORPORATION, a Delaware corporation (the “Company”), and the undersigned employee of the Company or a Subsidiary of the Company (the “Grantee”). The Grant Date for the Restricted Stock Units evidenced by this Agreement is September 1, 2019 (the “Grant Date”).
WHEREAS, the Company wishes to carry out the Plan, the terms of which are hereby incorporated by reference and made a part of this Agreement;
WHEREAS, the Company deems it essential to the protection of its confidential information and competitive standing in its market to have its key employees have reasonable restrictive covenants in place;
WHEREAS, Grantee agrees and acknowledges that the Company has a legitimate interest to protect its confidential information and competitive standing;
WHEREAS, the Company deems it essential to the optimal functioning of its business to have its key employees provide advance notice to the Company of their termination of employment; and
WHEREAS, the Compensation Committee of the Board of Directors of the Company (the “Committee”) has determined that, subject to the provisions of this Agreement and the Plan, it would be to the advantage and best interest of the Company and its shareholders to grant the Restricted Stock Units evidenced hereby to the Grantee as an incentive for his or her efforts during his or her term of service with the Company or its Subsidiaries or Affiliates, and has advised the Company thereof and instructed the undersigned officer to enter into this Agreement to evidence such Restricted Stock Units.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and valuable consideration, receipt of which is hereby acknowledged, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this Agreement, they shall have the meanings specified below. Capitalized terms not otherwise defined in this Agreement shall have the meanings specified in the Plan.
Section 1.1 -     Affiliate” shall mean any other Person directly or indirectly controlling, controlled by, or under common control with the Company. For the purposes of this definition, the term “control” (including, with correlative meanings, the terms “controlling”, “controlled by



and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities, by contract or otherwise.
Section 1.2 -     Award” shall mean the number of Restricted Stock Units evidenced by this Agreement.
Section 1.3 -     Good Reason” shall mean (a) a material reduction, other than a reduction that generally affects all similarly-situated executives and does not exceed 10% in one year or 20% in the aggregate over three consecutive years, by the Company in the Grantee’s base salary from that in effect immediately prior to the reduction; (b) a material reduction, other than a reduction that generally affects all similarly-situated executives, by the Company in the Grantee’s target or maximum annual cash incentive award opportunity or target or maximum annual equity-based compensation award opportunity from those in effect immediately prior to any such reduction; (c) relocation, other than through mutual agreement in writing between the Company and the Grantee or a secondment or temporary relocation for a reasonably finite period of time, of the Grantee’s primary office by more than 50 miles from the location of the Grantee’s primary office as of the Agreement date; or (d) any material diminution or material adverse change in the Grantee’s duties or responsibilities as they exist as of the Agreement date; provided, that (x) if the Grantee terminates Grantee’s employment for “Good Reason,” the Grantee shall provide written notice to the Company at least 30 days in advance of the date of termination, such notice shall describe the conduct the Grantee believes to constitute “Good Reason” and the Company shall have the opportunity to cure the “Good Reason” event within 30 days after receiving such notice, (y) if the Company cures the conduct that is the basis for the potential termination for “Good Reason” within such 30-day period, the Grantee’s notice of termination shall be deemed withdrawn and (z) if the Grantee does not give notice to the Company as described herein within 90 days after an event giving rise to “Good Reason,” the Grantee’s right to claim “Good Reason” termination on the basis of such event shall be deemed waived.
Section 1.4 -     Plan” shall mean the Peabody Energy Corporation 2017 Incentive Plan, as amended from time to time.
ARTICLE II
GRANT OF RESTRICTED STOCK UNITS
Section 2.1 -     Grant of Restricted Stock Units. Pursuant to Section 9 of the Plan, the Company has granted to the Grantee an Award consisting of the number of Restricted Stock Units set forth on the signature page hereof upon the terms and subject to the conditions set forth in this Agreement and the Plan. The grant of the Restricted Stock Units was made in consideration of the services to be rendered by the Grantee to the Company and its Subsidiaries and Affiliates.
Section 2.2 -     No Obligation of Employment. Nothing in this Agreement or in the Plan shall confer upon the Grantee any right to continue in the employ of the Company or any Subsidiary or Affiliate or interfere with or restrict in any way the rights of the Company and its Subsidiaries or Affiliates, which rights are hereby expressly reserved, to terminate the employment of the Grantee at any time for any reason whatsoever, with or without Cause.

2


Section 2.3 -     Adjustments in Restricted Stock Units. In the event of the occurrence of one of the corporate transactions or other events listed in Section 4.2 of the Plan, the Committee shall make such substitution or adjustment as provided in Sections 4.2 or 13.2 of the Plan or otherwise in the terms of the Restricted Stock Units in order to equitably reflect such corporate transaction or other event. Any such adjustment made by the Committee shall be final and binding upon the Grantee, the Company and all other interested persons.
Section 2.4 -     Change in Control. In the event of a Change in Control, the treatment of the Restricted Stock Units evidenced hereby will be determined in accordance with the Plan.
ARTICLE III
VESTING AND FORFEITURE OF RESTRICTED STOCK UNITS
Section 3.1 -     Normal Vesting. Subject to Sections 2.4, 3.2 and 3.3, the Restricted Stock Units evidenced by this Agreement shall become nonforfeitable and payable to the Grantee pursuant to Article IV as follows:
(a)    Retirement-Eligible Grantee. If the Grantee is eligible for Retirement as of the Grant Date, the Restricted Stock Units shall vest in substantially equal whole number installments on each of (i) the first eight quarterly anniversaries of the Grant Date during the period beginning on the Grant Date and ending on January 2, 2022 plus (ii) January 2, 2022, conditioned upon the Grantee’s continuous employment with the Company or a Subsidiary through each such date.
(b)    Non-Retirement-Eligible Grantee. If the Grantee is not eligible for Retirement as of the Grant Date, the Restricted Stock Units shall vest in substantially equal whole number installments on January 2, 2021 and January 2, 2022, conditioned upon the Grantee’s continuous employment with the Company or a Subsidiary through each such date.
(c)    Special Rule. If the Grantee becomes eligible for Retirement after the Grant Date, the provisions of Section 3.1(a) above shall apply on and after the date the Grantee becomes eligible for Retirement. However, on the first quarterly anniversary of the Grant Date (or January 2, 2022, as applicable) following the date on which the Grantee becomes eligible for Retirement, a portion of the Restricted Stock Units shall vest (to the extent not already vested). Such vesting portion shall equal (rounded to the nearest whole number) the result of the following formula: X multiplied by (Y/9), where “X” is equal to the aggregate number of Restricted Stock Units granted under this Agreement, and “Y” is equal to the number of full calendar quarters that have elapsed between the Grant Date and the then current quarterly anniversary of the Grant Date (or January 2, 2022, as applicable).
(d)    Example. The following example of the operation of Sections 3.1(b) and (c) hereof is for illustrative purposes only. A non-Retirement-eligible individual receives 1,800 Restricted Stock Units on September 1, 2019. On October 15, 2019, such individual becomes eligible for Retirement. On December 1, 2019 and each of the next seven quarterly anniversary of the Grant Date thereafter plus January 2, 2022, 200 Restricted Stock Units shall become vested (1/9th of the aggregate grant).

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(e)    For purposes of this Agreement, “continuously employed” (or substantially similar terms) means the absence of any interruption or termination of the Grantee’s employment with the Company or a Subsidiary. Continuous employment shall not be considered interrupted or terminated in the case of transfers between locations of the Company and its Subsidiaries. Each installment of Restricted Stock Units that becomes nonforfeitable and payable hereunder is a “separate payment” for purposes of Code Section 409A.
Section 3.2 -     Accelerated Vesting Events. Notwithstanding Section 3.1, upon the Grantee’s death or Disability, 100% of the unvested Restricted Stock Units evidenced by this Agreement shall, to the extent not already forfeited, become immediately nonforfeitable and shall be settled in accordance with Article IV below.
Section 3.3 -     Effect of Certain Terminations of Service. A Grantee will forfeit any and all unvested Restricted Stock Units upon (a) the Grantee’s voluntary Termination of Service, (b) the Grantee’s Termination of Service by the Company or a Subsidiary for Cause, or (c) subject to Section 2.4, the Grantee’s Termination of Service by the Company or a Subsidiary without Cause.
ARTICLE IV
SETTLEMENT OF RESTRICTED STOCK UNITS
Section 4.1 -     Settlement of Vested Restricted Stock Units. Subject to Sections 4.2 and 13.2 of the Plan and the exception set forth in Section 4.2 of this Agreement, as well as to any withholding obligations described in Section 6.3 of this Agreement, one share of Common Stock will be issued or delivered for each nonforfeitable Restricted Stock Unit evidenced by this Agreement as soon as practicable following the date on which the Restricted Stock Unit becomes nonforfeitable as set forth in Section 3.1 or Section 3.2, as applicable, but in all cases within the “short term deferral” period determined under Treasury Regulation Section 1.409A-1(b)(4). For the sake of clarity, the settlement of shares in respect of nonforfeitable Restricted Stock Units is intended to comply with Treasury Regulation Section 1.409A-1(b)(4) and will be construed and administered in such a manner. As a result, the shares will be issued no later than the date that is the 15th day of the third calendar month of the applicable year following the year in which the shares subject to the Restricted Stock Units are no longer subject to a “substantial risk of forfeiture” within the meaning of Treasury Regulation Section 1.409A-1(d).
Section 4.2 -     Settlement of Restricted Stock Units Vested in Accordance with Section 3.1(a). Notwithstanding Section 4.1 of this Agreement, if the Grantee is eligible for Retirement as of the Grant Date or becomes eligible pursuant to Section 3.1(c) and the Restricted Stock Units vest pursuant to Section 3.1(a) or 3.1(c), the shares of Common Stock underlying the vested Restricted Stock Units shall be issued or delivered upon the earlier of (a) the January 2 occurring on or immediately following the applicable vesting dates and (b) as soon as practicable following Retirement, but in all cases within the “short term deferral” period determined under U.S. Treasury Regulation Section 1.409A-1(b)(4) as described in Section 4.1 of this Agreement.
Section 4.3 -     Forfeiture of Unvested Restricted Stock Units. To the extent that the Grantee does not vest in all or any portion of the Restricted Stock Units subject to the Award, all interest in such unvested Restricted Stock Units shall be forfeited upon the Grantee’s Termination of Service. The Grantee has no right or interest in any Restricted Stock Unit that is forfeited.

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Section 4.4 -     Treatment of Fractional Restricted Stock Units. Notwithstanding anything in this Agreement to the contrary, in the event that any fractional Restricted Stock Unit is produced under the terms of the Plan or this Agreement, such fractional Restricted Stock Unit shall be rounded to the nearest whole Restricted Stock Unit; as a result, there will be no fractional Restricted Stock Units to settle under this Agreement.
ARTICLE V
CONDITION TO GRANT OF AWARD; OTHER PROVISIONS
Section 5.1 -     Restrictive Covenant Agreement. The Grantee shall not be entitled to receive the Award unless the Grantee shall have executed and delivered the Restrictive Covenant Agreement, substantially in the form attached hereto as Exhibit A, and such shall be in full force and effect. Nothing in this Agreement or the Restrictive Covenant Agreement prevents the Grantee from providing, without prior notice to the Company, information to governmental authorities regarding possible legal violations or otherwise testifying or participating in any investigation or proceeding by any governmental authorities regarding possible legal violations.
Section 5.2 -     Notice Period. The Grantee may terminate the Grantee’s employment with the Company or a Subsidiary at any time for any reason by delivery of notice to the Company at least 90 days in advance of the date of termination (the “Notice Period”); provided, however, that no communication, statement or announcement shall be considered to constitute such notice of termination of Grantee’s employment unless it complies with Section 6.4 hereof and specifically recites that it is a notice of termination of employment for purposes of this Agreement; and provided, further, that the Company may waive any or all of the Notice Period, in which case Grantee’s employment with the Company or a Subsidiary or Affiliate will terminate on the date determined by the Company.
Section 5.3 -     Breach of Restrictive Covenant Agreement or Section 5.2. Subject to Section 5.1, if the Grantee materially breaches any provision of the Restrictive Covenant Agreement or Section 5.2 hereof, the Company may, among other available remedies, determine that the Grantee (a) will forfeit any unpaid portion of the Restricted Stock Units evidenced by this Agreement and (b) will repay to the Company any portion of the Restricted Stock Units evidenced by this Agreement previously paid to Grantee.
Section 5.4 -     Conditions to Issuance of Shares. The Shares deliverable hereunder may be either previously authorized but unissued shares or issued shares that have been reacquired by the Company. Such Shares shall be fully paid and nonassessable. The Company shall not be required to issue or deliver any certificate or certificates (or other documentation that indicates ownership) for Shares paid hereunder prior to the fulfillment of both of the following conditions:
(a)    The obtaining of approval or other clearance from any state or federal governmental agency that the Committee, in its absolute discretion, determines to be necessary or advisable; and
(b)    The lapse of such reasonable period of time following the grant as the Committee may establish from time to time for administrative convenience (subject to, and in compliance with the requirements of Section 409A, including any requirements necessary to comply with Treasury Regulation Section 1.409A-1(b)(4)).

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Section 5.5 -     Rights as a Shareholder; Dividend Equivalents. The Grantee shall not be, and shall not have any of the rights or privileges of, a shareholder of the Company in respect of any Shares underlying Restricted Stock Units evidenced by this Agreement unless and until certificates representing such shares shall have been issued by the Company to Grantee or such ownership has otherwise been indicated and documented by the Company. From and after the Grant Date and until the earlier of (a) the time when the Restricted Stock Units become nonforfeitable and are paid in accordance with Article IV hereof or (b) the time when the Grantee’s right to receive payment for the Restricted Stock Units is forfeited in accordance with the provisions of this Agreement, on the date that the Company pays a cash dividend (if any) to holders of Shares generally, the Grantee shall be credited with additional Restricted Stock Units equal to the quotient of (x) the product of (i) the dividend declared per Share multiplied by (ii) the applicable number of Restricted Stock Units that remain subject to this Agreement (plus any previously-credited dividend equivalents), divided by (y) the Fair Market Value of a Share on the date such dividend is paid to shareholders, with any fractional Restricted Stock Units rounded to the nearest whole Restricted Stock Unit. Any amounts credited pursuant to the immediately preceding sentence shall be subject to the same applicable terms and conditions (including vesting, payment and forfeitability) as apply to the Restricted Stock Units based on which the dividend equivalents were credited, and such additional Restricted Stock Units shall be paid in Shares at the same time as the Restricted Stock Units to which they relate are paid.
Section 5.6 -     Restrictions. Restricted Stock Units granted pursuant to this Agreement shall be subject to Section 5.9 of the Plan and all applicable policies and guidelines of the Company that relate to (a) share ownership requirements, or (b) recovery of compensation (i.e., clawbacks).
ARTICLE VI
MISCELLANEOUS
Section 6.1 -     Administration. The Committee has the power to interpret the terms of the Restricted Stock Units, the Plan and this Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules. All actions taken and all interpretations and determinations made by the Committee shall be final and binding upon the Grantee, the Company and all other interested persons. No member of the Committee shall be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or the Restricted Stock Units. In its absolute discretion, the Board may at any time and from time to time exercise any and all rights and duties of the Committee under the Plan and this Agreement.
Section 6.2 -     Restricted Stock Units Not Transferable. Neither the Restricted Stock Units nor any interest or right therein or part thereof shall be liable for the debts, contracts or engagements of the Grantee or his or her successors in interest or shall be subject to disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or any other means whether such disposition is voluntary or involuntary or by operation of law by judgment, levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy), and any attempted disposition thereof shall be null and void and of no effect; provided, however, that this Section 6.2 shall not prevent transfers by will or by the applicable laws of descent and distribution.
Section 6.3 -     Withholding. As of the date that all or a portion of the Restricted Stock Units become settled pursuant to Section 4.1 hereof, the Company will, on a mandatory basis in

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accordance with Section 16.1(a) of the Plan, withhold a number of shares of Common Stock underlying the then vested Restricted Stock Units with a fair market value equal to the aggregate amount required by law to be withheld by the Company in connection with such vesting for applicable federal, state, local and foreign taxes of any kind. To the extent taxes are to be withheld upon vesting for purposes of federal FICA, FUTA or Medicare taxes, such withholding shall be taken from other income owed by the Company to the Grantee and the Grantee hereby agrees to such withholding. For all purposes, the amount withheld by the Company pursuant to this Section 6.3 shall be deemed to have first been paid to the Grantee.
Section 6.4 -     Notices. Any notice to be given under the terms of this Agreement to the Company shall be provided to the Chief Human Resources Officer, with a copy to the Grantee’s supervisor, and any notice to be given to the Grantee shall be addressed to him or her at the address set forth in the records of the Company. By a notice given pursuant to this Section 6.4, either party may hereafter designate a different address for notices to be given to him, her or it. Any notice which is required to be given to the Grantee shall, if the Grantee is then deceased, be given to the Grantee’s personal representative if such representative has previously informed the Company of his, her or its status and address by written notice under this Section 6.4. Any notice shall be deemed duly given when enclosed in a properly sealed envelope or wrapper addressed as aforesaid, deposited (with postage prepaid) in a post office or branch post office regularly maintained by the United States Postal Service. Notwithstanding the foregoing, any notice required or permitted hereunder from the Company to the Grantee may be made by electronic means, including by electronic mail to the Company-maintained electronic mailbox of the Grantee, and the Grantee hereby consents to receive such notice by electronic delivery. To the extent permitted in an electronically delivered notice described in the previous sentence, the Grantee shall be permitted to respond to such notice or communication by way of a responsive electronic communication, including by electronic mail.
Section 6.5 -     Titles. Titles are provided herein for convenience only and are not to serve as a basis for interpretation or construction of this Agreement.
Section 6.6 -     Pronouns. The masculine pronoun shall include the feminine and neuter, and the singular the plural, where the context so indicates.
Section 6.7 -     Applicability of Plan. The Restricted Stock Units and the Shares issued to the Grantee, if any, shall be subject to all of the terms and provisions of the Plan, to the extent applicable to the Restricted Stock Units and such Shares. In the event of any conflict between this Agreement and the Plan, the terms of the Plan shall control.
Section 6.8 -     Amendment. The Committee may amend this Agreement at any time, provided that no such amendment shall materially impair the rights of the Grantee unless reflected in a writing executed by the parties hereto that specifically states that it is amending this Agreement.
Section 6.9 -     Severability. The invalidity or unenforceability of any provision of the Plan or this Agreement shall not affect the validity or enforceability of any other provision of the Plan or this Agreement, and each provision of the Plan and this Agreement shall be severable and enforceable to the extent permitted by law.

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Section 6.10 -     Dispute Resolution. Any dispute or controversy arising under or in connection with this Agreement shall be resolved by arbitration in St. Louis, Missouri. Arbitrators shall be selected, and arbitration shall be conducted, in accordance with the rules of the American Arbitration Association. The Company shall pay or reimburse any legal fees in connection with such arbitration in the event that the Grantee prevails on a material element of his or her claim or defense. Payments or reimbursements of legal fees made under this Section 6.10 that are provided during one calendar year shall not affect the amount of such payments or reimbursements provided during a subsequent calendar year, payments or reimbursements under this Section 6.10 may not be exchanged or substituted for another form of compensation to the Grantee, and any such reimbursement or payment will be paid within 60 days after the Grantee prevails, but in no event later than the last day of the Grantee’s taxable year following the taxable year in which he incurred the expense giving rise to such reimbursement or payment. This Section 6.10 shall remain in effect throughout the Grantee’s employment with the Company or any Subsidiary and for a period of five (5) years following the Grantee’s Termination of Service.
Section 6.11 -     Section 409A.
(a)    The Award is intended to comply with the “short-term deferral” rule set forth in Treasury Regulation Section 1.409A-1(b)(4) and, to the maximum extent permitted, this Agreement shall be construed and administered consistent with such intent. Notwithstanding anything contained herein to the contrary, if the Award fails to satisfy the requirements of the short-term deferral rule and is otherwise not exempt from, and therefore deemed to be deferred compensation subject to, Section 409A, references in this Agreement (including in Section 4.1), to payment or settlement of amounts under this Agreement within the “short-term deferral” period determined under Treasury Regulation Section 1.409A-1(b)(4), shall not apply, and instead payments will be made on the applicable payment date or a later date within the same taxable year of the Grantee, or if such timing is administratively impracticable, by the 15th day of the third calendar month following the date specified herein. For clarity, the Grantee is not permitted to designate the taxable year of payment. Notwithstanding anything contained herein to the contrary, if the Grantee is a “specified employee” (within the meaning set forth Section 409A(a)(2)(B)(i) of the Code) as of the date of the Grantee’s “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)), then the issuance of any Shares that would otherwise be made on the date of the separation from service or within the first six months thereafter will not be made on the originally scheduled dates and will instead be issued in a lump sum on the date that is six months and one day after the date of the separation from service (or upon death, if earlier), with the balance of the Shares issued thereafter in accordance with the original vesting and issuance schedule set forth above, but if and only if such delay in the issuance of the Shares is necessary to avoid the imposition of taxation in respect of the shares under Section 409A. A termination of employment or service shall not be deemed to have occurred for purposes of this Agreement providing for the payment of any amounts that are considered deferred compensation under Section 409A upon or following a termination of employment or service, unless such termination is also a “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)) and the payment thereof prior to a “separation from service” would violate Section 409A. Each installment of Shares that becomes payable in respect of vested Restricted Stock Units subject to the Award is a “separate

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payment” for purposes of Treasury Regulation Section 1.409A-2(b)(2). In no event shall the Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the Grantee on account of Section 409A.
(b)    In the event that the Company determines that any amounts payable hereunder may be taxable to the Grantee under Code Section 409A prior to the payment and/or delivery to the Grantee of such amount, the Committee may adopt such amendments to the Agreement, and appropriate policies and procedures, including amendments and policies with retroactive effect, that the Committee determines necessary or appropriate to preserve the intended tax treatment of the benefits provided by the Restricted Stock Units and this Agreement.
(c)    Notwithstanding any provision of this Agreement to the contrary, in light of the uncertainty with respect to the proper application of Section 409A of the Code, the Company reserves the right to make amendments to this Agreement and the terms of the Restricted Stock Units as the Company deems necessary or desirable to avoid the imposition of taxes or penalties under Section 409A. In any case, neither the Company nor any of its affiliates will have any obligation to indemnify or otherwise hold the Grantee harmless from any or all of such taxes or penalties.
Section 6.12 -     Governing Law. The laws of the State of Delaware shall govern the interpretation, validity and performance of the terms of this Agreement regardless of the law that might be applied under principles of conflicts of laws.
Section 6.13 -     Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. Counterpart signatures to this Agreement transmitted by facsimile, electronic mail, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing an original signature.
Section 6.14 -     Acceptance of the Plan. The Grantee hereby acknowledges receipt of a copy of the Plan and this Agreement. The Grantee has read and understands the terms and provisions thereof, and accepts the Restricted Stock Units subject to all the terms and conditions of the Plan and this Agreement. The Grantee acknowledges that there may be adverse tax consequences upon the vesting or settlement of the Restricted Stock Units and that the Grantee has been advised to consult a tax advisor prior to such vesting or settlement.

[SIGNATURE PAGE FOLLOWS]

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IN WITNESS WHEREOF, this Agreement has been executed and delivered by the parties hereto.


 
 
PEABODY ENERGY CORPORATION
 
 
/s/ Paul V. Richard
 
 
Paul V. Richard
 
 
Senior Vice President
Chief Human Resources Officer
 
 
 
 
 
 


Note: The Grantee is deemed to have executed this Agreement upon clicking “Accept” in the Plan’s online administration site.












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EXHIBIT A
RESTRICTIVE COVENANT AGREEMENT
THIS RESTRICTIVE COVENANT AGREEMENT (the “RCA”) dated September 1, 2019, is by and between PEABODY ENERGY CORPORATION, a Delaware corporation (the “Company”), and (“Grantee”).
WHEREAS, the Grantee is a recipient of a 2019 Restricted Stock Unit Grant (“Award”) under the Company’s Peabody Energy Corporation 2017 Incentive Plan, as amended from time to time (the “Plan,” and such award, the “Award”);
WHEREAS, Grantee acknowledges and agrees that he or she has access to and/or knowledge of certain trade secrets and other Confidential Information regarding the Company;
WHEREAS, the Company has spent and will continue to expend substantial amounts of time, money, and effort to develop its Confidential Information and Grantee acknowledges benefitting from these efforts;
WHEREAS, the Company deems it essential to the protection of its Confidential Information and competitive standing in its market to have recipients of Awards subject to reasonable restrictive covenants;
WHEREAS, Grantee agrees and acknowledges that the Company has a legitimate interest to protect its confidential information and competitive standing; and
NOW THEREFORE, in consideration for the provisions stated below, and intending to be legally bonded thereby, the parties agree as follows.
1.Grantee has been informed and is aware that the execution of this RCA is a necessary term and condition of the Grantee’s receipt of the Award.
2.The term “Confidential Information” as used in this RCA shall be broadly interpreted to include, without limitation, materials and information (whether in written, electronic or other form and whether or not identified as confidential at the time of disclosure) concerning technical matters, business matters, business plans, operations, opportunities, plans, processes, procedures, standards, strategies, policies, programs, software, schematics, models, systems, results, studies, analyses, compilations, forecasts, data, figures, projections, estimates, components, records, methods, criteria, designs, quality control, research, samples, work-in-progress, prototypes, data, materials, clients and prospective clients, customer lists, contracts, projects, suppliers, referral sources, sales, marketing, bidding, purchasing, personnel, financial condition, assets, inventory, accounts payable, accounts receivable, tax matters, books of account, financing, collections, intellectual property, trade secrets and all other know-how and information of the Company or any subsidiary of the Company which has not been published or disclosed to the general public.
a.    While employed by the Company and at all times thereafter, Grantee will keep Confidential Information, including trade secrets, confidential and shall not, directly

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or indirectly, use for himself or herself or use for, or disclose to, any party other than the Company, or any subsidiary of the Company (other than in the ordinary course of Grantee’s duties for the benefit of the Company or any subsidiary of the Company), any Confidential Information.
b.    At the termination of Grantee’s employment or at any other reasonable time the Company or any of its subsidiaries may request, Grantee shall promptly deliver to the Company all memoranda, notes, records, plats, sketches, plans or other documents (including, without limitation, any “soft” copies or computerized or electronic versions thereof) containing Confidential Information, including trade secrets or any other information concerning Company’s business, including all copies, then in Grantee’s possession or under Grantee’s control whether prepared by Grantee or others.
c.    Notwithstanding the foregoing paragraphs, Company employees, contractors, and consultants may disclose trade secrets in confidence, either directly or indirectly, to a Federal, State or local government official or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law, or in a complaint or other document filed in a lawsuit or other proceeding if such filing is made under seal. Additionally, Company employees, contractors, and consultants who file retaliation suits for reporting a suspected violation of law may disclose related trade secrets to their attorney and use them in related court proceedings, as long as the individual files documents containing the trade secret under seal and does not otherwise disclose the trade secret except pursuant to Court Order.
3.In consideration of the Company’s obligations under the Restricted Stock Unit Agreement (the “Agreement”), Grantee agrees that while employed by the Company and for a period of twelve (12) months thereafter, without the prior written consent of the Board of Directors of the Company (the “Board”), he or she shall not, directly or indirectly, as principal, manager, agent, consultant, officer, director, stockholder, partner, investor, lender or employee or in any other capacity, carry on, be engaged in or have any financial interest in, any entity which is in competition with the business of the Company or its subsidiaries.
4.In consideration of the Company’s obligations under the Agreement, Grantee agrees that while employed by the Company and for a period of twelve (12) months thereafter, without the prior written consent of the Board, he or she shall not, on his or her own behalf or on behalf of any person, firm or company, directly or indirectly, (a) solicit or offer employment to or hire any person who is or has been employed by the Company or its subsidiaries at any time during the twelve (12) months immediately preceding such solicitation or (b) solicit or entice away or in any manner attempt to persuade any client, vendor, partner, customer or prospective customer of the Company to discontinue or diminish his, her or its relationship or prospective relationship with the Company or to otherwise provide his, her or its business to any corporation, partnership or other business entity which engages in any line of business in which the Company is engaged (other than the Company).
5.For purposes of this RCA, an entity shall be deemed to be in competition with the Company if it enters into or engages in any business or activity that substantially and directly competes with the business of the Company. For purposes of this paragraph 5, the business of the Company is defined to be: active metallurgical and thermal coal mining, preparation and sale; the

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marketing, brokering and trading of metallurgical and thermal coal; and the optimization of our metallurgical and thermal coal reserves; in each case by the Company and its direct and indirect subsidiaries or affiliated or related companies. Notwithstanding this paragraph 5 or paragraph 8, nothing herein shall be construed so as to preclude Grantee from investing in any publicly or privately held company, provided that no such investment in the equity securities of an entity with publicly traded equity securities may exceed one percent (1%) of the equity of such entity, and no such investment in any other entity may exceed five percent (5%) of the equity of such entity, without the prior written approval of the Board.
6.Grantee agrees that he or she will not at any time make, directly or indirectly, any negative, derogatory, disparaging or defamatory comment, whether written, oral or in electronic format, to any reporter, author, producer or similar person or entity or to any general public media in any form (including, without limitation, books, articles or writings of any other kind, as well as film, videotape, audio tape, computer/Internet format or any other medium) that concerns directly or indirectly the Company its business or operations, or any of its current or former agents, employees, officers, directors, customers or clients. Grantee understands that nothing in this section or this RCA limits Grantee’s ability to communicate with any government agencies or otherwise participate or cooperate with an investigation conducted by the Equal Employment Opportunity Commission, the Securities and Exchange Commission, or other similar agency, including providing documents or other information, without notice to the Company.
7.Upon the termination of Grantee’s employment for any reason, Grantee or his or her estate shall surrender to the Company all correspondence, letters, files, contracts, mailing lists, customer lists, advertising materials, ledgers, supplies, equipment, checks, and all other materials and records of any kind that are the property of the Company or any of its subsidiaries or affiliates, that may be in Grantee’s possession or under his control, including, without limitation, any “soft” copies or computerized or electronic versions thereof.
8.Grantee agrees that the covenant not to compete, the covenants not to solicit and the covenant not to make disparaging comments are reasonable under the circumstances and will not interfere with his or her ability to earn a living or otherwise to meet his or her financial obligations. Grantee and the Company agree that if in the opinion of any court of competent jurisdiction such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of this covenant which appear unreasonable and to enforce the remainder of the covenant as so amended. Grantee agrees that any breach of the covenants contained in this RCA would irreparably injure the Company. Accordingly, Grantee agrees that, in the event that a court enjoins Grantee from any activity prohibited by this RCA, the Company may, in addition to pursuing any other remedies it may have in law or in equity, cease making any payments otherwise required under the agreements evidencing the Award, cancel and recoup any portion of the Award already paid to the extent required by law, regulation or listing requirement, or by any Company policy adopted pursuant thereto, and obtain and injunction against Grantee from any court having jurisdiction over the matter restraining any further violation of this RCA by Grantee.
9.No waiver or modification of all or any part of this RCA will be effective unless set forth in a written document signed by both the Company and Grantee expressly indicating their intention to waive or modify the specified provisions of this RCA. If the Company chooses not to enforce its rights in the event Grantee or any other recipient of an Award breaches some or all of

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the terms of this RCA, the Company’s rights with respect to any such breach shall not be considered a waiver of a future breach by Grantee of this RCA, regardless of whether the breach is of a similar nature or not.
10.This RCA accurately sets forth and entirely sets forth the understandings reached between Grantee and the Company with respect to the matters treated herein. If there are any prior written or oral understandings or agreements pertaining to the subject matter addressed in this RCA, they are specifically superseded by this RCA and have no effect, except, should the Grantee be subject to non-compete and non-solicitation obligations (“Restrictive Covenants”) pursuant to an employment agreement or other agreement between the Grantee and Company or one of its subsidiaries or affiliates, Grantee shall continue to be bound by the terms of those Restrictive Covenants and they shall run concurrently with those set forth in this RCA. This RCA is binding on Grantee and the Company, and our respective successors, assigns and representatives.
11.Because of Company’s and Grantee’s substantial contacts with the State of Missouri, the fact that Company’s headquarters is located in Missouri, the parties’ interests in ensuring that disputes regarding the interpretation, validity, and enforceability of this RCA are resolved on a uniform basis, and Company’s making and execution of this Agreement in Missouri, the parties agree that the RCA shall be interpreted and governed by the laws of the State of Missouri, without regard for any conflict of law principles. The parties agree that the exclusive venue and jurisdiction for any litigation concerning or arising out of or based on this RCA shall be the federal and state courts located in Missouri. The parties expressly consent to the personal jurisdiction and venue of said courts. The provisions of this paragraph shall not restrict the ability of Company or Grantee to enforce in any court any judgment obtained in Missouri federal or state court.
[SIGNATURE PAGE FOLLOWS]


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IN WITNESS WHEREOF, this RCA has been executed and delivered by the parties hereto.



 
 
PEABODY ENERGY CORPORATION
 
 
/s/ Paul V. Richard
 
 
Paul V. Richard
 
 
Senior Vice President
Chief Human Resources Officer
 
 
 
 
 
 


Note: The Grantee is deemed to have executed this Agreement upon clicking “Accept” in the Plan’s online administration site.
























15

Restricted Stock Unit Agreement Director Level and Above 2019 Special Award

Exhibit 10.76
PEABODY ENERGY CORPORATION
2017 INCENTIVE PLAN

RESTRICTED STOCK UNIT AGREEMENT

THIS RESTRICTED STOCK UNIT AGREEMENT (the “Agreement”), effective as of July 1, 2019, is made by and between PEABODY ENERGY CORPORATION, a Delaware corporation (the “Company”), and the undersigned employee of the Company or a Subsidiary of the Company (the “Grantee”). The Grant Date for the Restricted Stock Units evidenced by this Agreement is July 1, 2019 (the “Grant Date”).

WHEREAS, the Company wishes to carry out the Plan, the terms of which are hereby incorporated by reference and made a part of this Agreement;

WHEREAS, the Company deems it essential to the protection of its confidential information and competitive standing in its market to have its key employees have reasonable restrictive covenants in place;

WHEREAS, Grantee agrees and acknowledges that the Company has a legitimate interest to protect its confidential information and competitive standing;

WHEREAS, the Company deems it essential to the optimal functioning of its business to have its key employees provide advance notice to the Company of their termination of employment; and

WHEREAS, the Compensation Committee of the Board of Directors of the Company (the “Committee”) has determined that, subject to the provisions of this Agreement and the Plan, it would be to the advantage and best interest of the Company and its shareholders to grant the Restricted Stock Units evidenced hereby to the Grantee as an incentive for his or her efforts during his or her term of service with the Company or its Subsidiaries or Affiliates, and has advised the Company thereof and instructed the undersigned officer to enter into this Agreement to evidence such Restricted Stock Units.

NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and valuable consideration, receipt of which is hereby acknowledged, the parties hereby agree as follows:

ARTICLE I
DEFINITIONS

Whenever the following terms are used in this Agreement, they shall have the meanings specified below. Capitalized terms not otherwise defined in this Agreement shall have the meanings specified in the Plan.

Section 1.1 - “Affiliate” shall mean any other Person directly or indirectly controlling, controlled by, or under common control with the Company. For the purposes of this definition, the term “control” (including, with correlative meanings, the terms “controlling”, “controlled by



and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities, by contract or otherwise.

Section 1.2 - “Award” shall mean the number of Restricted Stock Units evidenced by this Agreement.

Section 1.3 - “Good Reason” shall mean (a) a material reduction, other than a reduction that generally affects all similarly-situated executives and does not exceed 10% in one year or 20% in the aggregate over three consecutive years, by the Company in the Grantee’s base salary from that in effect immediately prior to the reduction; (b) a material reduction, other than a reduction that generally affects all similarly-situated executives, by the Company in the Grantee’s target or maximum annual cash incentive award opportunity or target or maximum annual equity-based compensation award opportunity from those in effect immediately prior to any such reduction; (c) relocation, other than through mutual agreement in writing between the Company and the Grantee or a secondment or temporary relocation for a reasonably finite period of time, of the Grantee’s primary office by more than 50 miles from the location of the Grantee’s primary office as of the Agreement date; or (d) any material diminution or material adverse change in the Grantee’s duties or responsibilities as they exist as of the Agreement date; provided, that (x) if the Grantee terminates Grantee’s employment for “Good Reason,” the Grantee shall provide written notice to the Company at least 30 days in advance of the date of termination, such notice shall describe the conduct the Grantee believes to constitute “Good Reason” and the Company shall have the opportunity to cure the “Good Reason” event within 30 days after receiving such notice, (y) if the Company cures the conduct that is the basis for the potential termination for “Good Reason” within such 30-day period, the Grantee’s notice of termination shall be deemed withdrawn and (z) if the Grantee does not give notice to the Company as described herein within 90 days after an event giving rise to “Good Reason,” the Grantee’s right to claim “Good Reason” termination on the basis of such event shall be deemed waived.

Section 1.4 - “Plan” shall mean the Peabody Energy Corporation 2017 Incentive Plan, as amended from time to time.

ARTICLE II
GRANT OF RESTRICTED STOCK UNITS

Section 2.1 - Grant of Restricted Stock Units. Pursuant to Section 9 of the Plan, the Company has granted to the Grantee an Award consisting of the number of Restricted Stock Units set forth on the signature page hereof upon the terms and subject to the conditions set forth in this Agreement and the Plan. The grant of the Restricted Stock Units was made in consideration of the services to be rendered by the Grantee to the Company and its Subsidiaries and Affiliates.

Section 2.2 - No Obligation of Employment. Nothing in this Agreement or in the Plan shall confer upon the Grantee any right to continue in the employ of the Company or any Subsidiary or Affiliate or interfere with or restrict in any way the rights of the Company and its Subsidiaries or Affiliates, which rights are hereby expressly reserved, to terminate the employment of the Grantee at any time for any reason whatsoever, with or without Cause.


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Section 2.3 - Adjustments in Restricted Stock Units. In the event of the occurrence of one of the corporate transactions or other events listed in Section 4.2 of the Plan, the Committee shall make such substitution or adjustment as provided in Sections 4.2 or 13.2 of the Plan or otherwise in the terms of the Restricted Stock Units in order to equitably reflect such corporate transaction or other event. Any such adjustment made by the Committee shall be final and binding upon the Grantee, the Company and all other interested persons.

Section 2.4 - Change in Control. In the event of a Change in Control, the treatment of the Restricted Stock Units evidenced hereby will be determined in accordance with the Plan.

ARTICLE III
VESTING AND FORFEITURE OF RESTRICTED STOCK UNITS

Section 3.1 - Normal Vesting. Subject to Sections 2.4, 3.2 and 3.3, the Restricted Stock Units evidenced by this Agreement shall become nonforfeitable and payable to the Grantee pursuant to Article IV as follows:

(a)Retirement-Eligible Grantee. If the Grantee is eligible for Retirement as of the Grant Date, the Restricted Stock Units shall vest in substantially equal installments, each of the quarterly anniversaries of the Grant Date during the period beginning on the Grant Date and ending on January 2, 2022, conditioned upon the Grantee’s continuous employment with the Company or a Subsidiary through each such date.

(b)Non-Retirement-Eligible Grantee. If the Grantee is not eligible for Retirement as of the Grant Date, the Restricted Stock Units shall vest in full on 2 January 2022, conditioned upon the Grantee’s continuous employment with the Company or a Subsidiary through such date.

(c)Special Rule. If the Grantee becomes eligible for Retirement after the Grant Date, the provisions of Section 3.1(a) above shall apply on and after the date the Grantee becomes eligible for Retirement. However, on the first quarterly anniversary of the Grant Date following the date on which the Grantee becomes eligible for Retirement, a portion of the Restricted Stock Units shall vest. Such vesting portion shall equal the result of the following formula: X multiplied by (Y/10), where “X” is equal to the aggregate number of Restricted Stock Units granted under this Agreement, and “Y” is equal to the number of full calendar quarters that have elapsed between the Grant Date (or the most recent annual anniversary of the Grant Date) and the then current quarterly anniversary of the Grant Date.

(d)Example. The following example of the operation of Sections 3.1(b) and (c) hereof is for illustrative purposes only. A non-Retirement-eligible individual receives 3,000 Restricted Stock Units on 1 July 2019. On 15 July 2019, such individual becomes eligible for Retirement. On 1 October 2019 and each quarterly anniversary of the Grant Date thereafter until 2 January 2022, 300 Restricted Stock Units shall become vested (1/10th of the aggregate grant).
(e)For purposes of this Agreement, “continuously employed” (or substantially similar terms) means the absence of any interruption or termination of the Grantee’s employment with the Company or a Subsidiary. Continuous employment shall not be

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considered interrupted or terminated in the case of transfers between locations of the Company and its Subsidiaries. Each installment of Restricted Stock Units that becomes nonforfeitable and payable hereunder is a “separate payment” for purposes of Code Section 409A.

Section 3.2 - Accelerated Vesting Events. Notwithstanding Section 3.1, upon the Grantee’s death or Disability, 100% of the unvested Restricted Stock Units evidenced by this Agreement shall, to the extent not already forfeited, become immediately nonforfeitable and shall be settled in accordance with Article IV below.

Section 3.3 - Effect of Certain Terminations of Service. A Grantee will forfeit any and all unvested Restricted Stock Units upon (a) the Grantee’s voluntary Termination of Service, (b) the Grantee’s Termination of Service by the Company or a Subsidiary for Cause, or (c) subject to Section 2.4, the Grantee’s Termination of Service by the Company or a Subsidiary without Cause.

ARTICLE IV
SETTLEMENT OF RESTRICTED STOCK UNITS

Section 4.1 -    Settlement of Vested Restricted Stock Units. Subject to Sections 4.2 and
13.2    of the Plan and the exception set forth in Section 4.2 of this Agreement, as well as to any withholding obligations described in Section 6.3 of this Agreement, one share of Common Stock will be issued or delivered for each nonforfeitable Restricted Stock Unit evidenced by this Agreement as soon as practicable following the date on which the Restricted Stock Unit becomes nonforfeitable as set forth in Section 3.1 or Section 3.2, as applicable, but in all cases within the “short term deferral” period determined under Treasury Regulation Section 1.409A-1(b)(4). For the sake of clarity, the settlement of shares in respect of nonforfeitable Restricted Stock Units is intended to comply with Treasury Regulation Section 1.409A-1(b)(4) and will be construed and administered in such a manner. As a result, the shares will be issued no later than the date that is the 15th day of the third calendar month of the applicable year following the year in which the shares subject to the Restricted Stock Units are no longer subject to a “substantial risk of forfeiture” within the meaning of Treasury Regulation Section 1.409A-1(d).

Section 4.2 - Settlement of Restricted Stock Units Vested in Accordance with Section 3.1(a). Notwithstanding Section 4.1 of this Agreement, if the Grantee is eligible for Retirement as of the Grant Date or becomes eligible pursuant to Section 3.1(c) and the Restricted Stock Units vest in substantially equal installments on each of the quarterly anniversaries of the Grant Date pursuant to Section 3.1(a) or 3.1(c), the shares of Common Stock underlying the vested Restricted Stock Units shall be issued or delivered upon the earlier of (a) each of the first, second and third year anniversaries of the Grant Date on or immediately following the quarterly vesting dates and (b) as soon as practicable following Retirement, but in all cases within the “short term deferral” period determined under U.S. Treasury Regulation Section 1.409A-1(b)(4) as described in Section 4.1 of this Agreement.

Section 4.3 - Forfeiture of Unvested Restricted Stock Units. To the extent that the Grantee does not vest in all or any portion of the Restricted Stock Units subject to the Award, all interest in such unvested Restricted Stock Units shall be forfeited upon the Grantee’s Termination of Service. The Grantee has no right or interest in any Restricted Stock Unit that is forfeited.


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Section 4.4 - Treatment of Fractional Restricted Stock Units. Notwithstanding anything in this Agreement to the contrary, in the event that any fractional Restricted Stock Unit is produced under the terms of the Plan or this Agreement, such fractional Restricted Stock Unit shall be rounded to the nearest whole Restricted Stock Unit; as a result, there will be no fractional Restricted Stock Units to settle under this Agreement.

ARTICLE V
CONDITION TO GRANT OF AWARD; OTHER PROVISIONS

Section 5.1 - Restrictive Covenant Agreement. The Grantee shall not be entitled to receive the Award unless the Grantee shall have executed and delivered the Restrictive Covenant Agreement, substantially in the form attached hereto as Exhibit A, and such shall be in full force and effect. Nothing in this Agreement or the Restrictive Covenant Agreement prevents the Grantee from providing, without prior notice to the Company, information to governmental authorities regarding possible legal violations or otherwise testifying or participating in any investigation or proceeding by any governmental authorities regarding possible legal violations.

Section 5.2 - Notice Period. The Grantee may terminate the Grantee’s employment with the Company or a Subsidiary at any time for any reason by delivery of notice to the Company at least 60 days in advance of the date of termination (the “Notice Period”); provided, however, that no communication, statement or announcement shall be considered to constitute such notice of termination of Grantee’s employment unless it complies with Section 6.4 hereof and specifically recites that it is a notice of termination of employment for purposes of this Agreement; and provided, further, that the Company may waive any or all of the Notice Period, in which case Grantee’s employment with the Company or a Subsidiary or Affiliate will terminate on the date determined by the Company.

Section 5.3 - Breach of Restrictive Covenant Agreement or Section 5.2. Subject to Section 5.1, if the Grantee materially breaches any provision of the Restrictive Covenant Agreement or Section 5.2 hereof, the Company may, among other available remedies, determine that the Grantee (a) will forfeit any unpaid portion of the Restricted Stock Units evidenced by this Agreement and (b) will repay to the Company any portion of the Restricted Stock Units evidenced by this Agreement previously paid to Grantee.

Section 5.4 - Conditions to Issuance of Shares. The Shares deliverable hereunder may be either previously authorized but unissued shares or issued shares that have been reacquired by the Company. Such Shares shall be fully paid and nonassessable. The Company shall not be required to issue or deliver any certificate or certificates (or other documentation that indicates ownership) for Shares paid hereunder prior to the fulfillment of both of the following conditions:

(a)    The obtaining of approval or other clearance from any state or federal governmental agency that the Committee, in its absolute discretion, determines to be necessary or advisable; and

(b)    The lapse of such reasonable period of time following the grant as the Committee may establish from time to time for administrative convenience (subject to, and in compliance with the requirements of Section 409A, including any requirements necessary to comply with Treasury Regulation Section 1.409A-1(b)(4)).

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Section 5.5 - Rights as a Shareholder; Dividend Equivalents. The Grantee shall not be, and shall not have any of the rights or privileges of, a shareholder of the Company in respect of any Shares underlying Restricted Stock Units evidenced by this Agreement unless and until certificates representing such shares shall have been issued by the Company to Grantee or such ownership has otherwise been indicated and documented by the Company. From and after the Grant Date and until the earlier of (a) the time when the Restricted Stock Units become nonforfeitable and are paid in accordance with Article IV hereof or (b) the time when the Grantee’s right to receive payment for the Restricted Stock Units is forfeited in accordance with the provisions of this Agreement, on the date that the Company pays a cash dividend (if any) to holders of Shares generally, the Grantee shall be credited with additional Restricted Stock Units equal to the quotient of (x) the product of (i) the dividend declared per Share multiplied by (ii) the applicable number of Restricted Stock Units that remain subject to this Agreement (plus any previously-credited dividend equivalents), divided by (y) the Fair Market Value of a Share on the date such dividend is paid to shareholders, with any fractional Restricted Stock Units rounded to the nearest whole Restricted Stock Unit. Any amounts credited pursuant to the immediately preceding sentence shall be subject to the same applicable terms and conditions (including vesting, payment and forfeitability) as apply to the Restricted Stock Units based on which the dividend equivalents were credited, and such additional Restricted Stock Units shall be paid in Shares at the same time as the Restricted Stock Units to which they relate are paid.

Section 5.6 - Restrictions. Restricted Stock Units granted pursuant to this Agreement shall be subject to Section 5.9 of the Plan and all applicable policies and guidelines of the Company that relate to (a) share ownership requirements, or (b) recovery of compensation (i.e., clawbacks).

ARTICLE VI
MISCELLANEOUS

Section 6.1 - Administration. The Committee has the power to interpret the terms of the Restricted Stock Units, the Plan and this Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules. All actions taken and all interpretations and determinations made by the Committee shall be final and binding upon the Grantee, the Company and all other interested persons. No member of the Committee shall be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or the Restricted Stock Units. In its absolute discretion, the Board may at any time and from time to time exercise any and all rights and duties of the Committee under the Plan and this Agreement.

Section 6.2 - Restricted Stock Units Not Transferable. Neither the Restricted Stock Units nor any interest or right therein or part thereof shall be liable for the debts, contracts or engagements of the Grantee or his or her successors in interest or shall be subject to disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or any other means whether such disposition is voluntary or involuntary or by operation of law by judgment, levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy), and any attempted disposition thereof shall be null and void and of no effect; provided, however, that this Section 6.2 shall not prevent transfers by will or by the applicable laws of descent and distribution.

Section 6.3 - Withholding. As of the date that all or a portion of the Restricted Stock Units become settled pursuant to Section 4.1 hereof, the Company will, on a mandatory basis in

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accordance with Section 16.1(a) of the Plan, withhold a number of shares of Common Stock underlying the then vested Restricted Stock Units with a fair market value equal to the aggregate amount required by law to be withheld by the Company in connection with such vesting for applicable federal, state, local and foreign taxes of any kind. To the extent taxes are to be withheld upon vesting for purposes of federal FICA, FUTA or Medicare taxes, such withholding shall be taken from other income owed by the Company to the Grantee and the Grantee hereby agrees to such withholding. For all purposes, the amount withheld by the Company pursuant to this Section
6.3
shall be deemed to have first been paid to the Grantee.

Section 6.4 - Notices. Any notice to be given under the terms of this Agreement to the Company shall be provided to the Chief Human Resources Officer, with a copy to the Grantee’s supervisor, and any notice to be given to the Grantee shall be addressed to him or her at the address set forth in the records of the Company. By a notice given pursuant to this Section 6.4, either party may hereafter designate a different address for notices to be given to him, her or it. Any notice which is required to be given to the Grantee shall, if the Grantee is then deceased, be given to the Grantee’s personal representative if such representative has previously informed the Company of his, her or its status and address by written notice under this Section 6.4. Any notice shall be deemed duly given when enclosed in a properly sealed envelope or wrapper addressed as aforesaid, deposited (with postage prepaid) in a post office or branch post office regularly maintained by the United States Postal Service. Notwithstanding the foregoing, any notice required or permitted hereunder from the Company to the Grantee may be made by electronic means, including by electronic mail to the Company-maintained electronic mailbox of the Grantee, and the Grantee hereby consents to receive such notice by electronic delivery. To the extent permitted in an electronically delivered notice described in the previous sentence, the Grantee shall be permitted to respond to such notice or communication by way of a responsive electronic communication, including by electronic mail.

Section 6.5 - Titles. Titles are provided herein for convenience only and are not to serve as a basis for interpretation or construction of this Agreement.

Section 6.6 - Pronouns. The masculine pronoun shall include the feminine and neuter, and the singular the plural, where the context so indicates.

Section 6.7 - Applicability of Plan. The Restricted Stock Units and the Shares issued to the Grantee, if any, shall be subject to all of the terms and provisions of the Plan, to the extent applicable to the Restricted Stock Units and such Shares. In the event of any conflict between this Agreement and the Plan, the terms of the Plan shall control.

Section 6.8 - Amendment. The Committee may amend this Agreement at any time, provided that no such amendment shall materially impair the rights of the Grantee unless reflected in a writing executed by the parties hereto that specifically states that it is amending this Agreement.

Section 6.9 - Severability. The invalidity or unenforceability of any provision of the Plan or this Agreement shall not affect the validity or enforceability of any other provision of the Plan or this Agreement, and each provision of the Plan and this Agreement shall be severable and enforceable to the extent permitted by law.


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Section 6.10 - Dispute Resolution. Any dispute or controversy arising under or in connection with this Agreement shall be resolved by arbitration in St. Louis, Missouri. Arbitrators shall be selected, and arbitration shall be conducted, in accordance with the rules of the American Arbitration Association. The Company shall pay or reimburse any legal fees in connection with such arbitration in the event that the Grantee prevails on a material element of his or her claim or defense. Payments or reimbursements of legal fees made under this Section 6.10 that are provided during one calendar year shall not affect the amount of such payments or reimbursements provided during a subsequent calendar year, payments or reimbursements under this Section 6.10 may not be exchanged or substituted for another form of compensation to the Grantee, and any such reimbursement or payment will be paid within 60 days after the Grantee prevails, but in no event later than the last day of the Grantee’s taxable year following the taxable year in which he incurred the expense giving rise to such reimbursement or payment. This Section 6.10 shall remain in effect throughout the Grantee’s employment with the Company or any Subsidiary and for a period of five (5) years following the Grantee’s Termination of Service.

Section 6.11 - Section 409A.

(a)    The Award is intended to comply with the “short-term deferral” rule set forth in Treasury Regulation Section 1.409A-1(b)(4) and, to the maximum extent permitted, this Agreement shall be construed and administered consistent with such intent. Notwithstanding anything contained herein to the contrary, if the Award fails to satisfy the requirements of the short-term deferral rule and is otherwise not exempt from, and therefore deemed to be deferred compensation subject to, Section 409A, references in this Agreement (including in Section 4.1), to payment or settlement of amounts under this Agreement within the “short-term deferral” period determined under Treasury Regulation Section 1.409A-1(b)(4), shall not apply, and instead payments will be made on the applicable payment date or a later date within the same taxable year of the Grantee, or if such timing is administratively impracticable, by the 15th day of the third calendar month following the date specified herein. For clarity, the Grantee is not permitted to designate the taxable year of payment. Notwithstanding anything contained herein to the contrary, if the Grantee is a “specified employee” (within the meaning set forth Section 409A(a)(2)(B)(i) of the Code) as of the date of the Grantee’s “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)), then the issuance of any Shares that would otherwise be made on the date of the separation from service or within the first six months thereafter will not be made on the originally scheduled dates and will instead be issued in a lump sum on the date that is six months and one day after the date of the separation from service (or upon death, if earlier), with the balance of the Shares issued thereafter in accordance with the original vesting and issuance schedule set forth above, but if and only if such delay in the issuance of the Shares is necessary to avoid the imposition of taxation in respect of the shares under Section 409A. A termination of employment or service shall not be deemed to have occurred for purposes of this Agreement providing for the payment of any amounts that are considered deferred compensation under Section 409A upon or following a termination of employment or service, unless such termination is also a “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)) and the payment thereof prior to a “separation from service” would violate Section 409A. Each installment of Shares that becomes payable in respect of vested Restricted Stock Units subject to the Award is a “separate


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payment” for purposes of Treasury Regulation Section 1.409A-2(b)(2). In no event shall the Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the Grantee on account of Section 409A.

(b)    In the event that the Company determines that any amounts payable hereunder may be taxable to the Grantee under Code Section 409A prior to the payment and/or delivery to the Grantee of such amount, the Committee may adopt such amendments to the Agreement, and appropriate policies and procedures, including amendments and policies with retroactive effect, that the Committee determines necessary or appropriate to preserve the intended tax treatment of the benefits provided by the Restricted Stock Units and this Agreement.

(c)    Notwithstanding any provision of this Agreement to the contrary, in light of the uncertainty with respect to the proper application of Section 409A of the Code, the Company reserves the right to make amendments to this Agreement and the terms of the Restricted Stock Units as the Company deems necessary or desirable to avoid the imposition of taxes or penalties under Section 409A. In any case, neither the Company nor any of its affiliates will have any obligation to indemnify or otherwise hold the Grantee harmless from any or all of such taxes or penalties.

Section 6.12 - Governing Law. The laws of the State of Delaware shall govern the interpretation, validity and performance of the terms of this Agreement regardless of the law that might be applied under principles of conflicts of laws.

Section 6.13 - Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. Counterpart signatures to this Agreement transmitted by facsimile, electronic mail, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing an original signature.

Section 6.14 - Acceptance of the Plan. The Grantee hereby acknowledges receipt of a copy of the Plan and this Agreement. The Grantee has read and understands the terms and provisions thereof, and accepts the Restricted Stock Units subject to all the terms and conditions of the Plan and this Agreement. The Grantee acknowledges that there may be adverse tax consequences upon the vesting or settlement of the Restricted Stock Units and that the Grantee has been advised to consult a tax advisor prior to such vesting or settlement.
[SIGNATURE PAGE FOLLOWS]


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IN WITNESS WHEREOF, this Agreement has been executed and delivered by the parties hereto.


PEABODY ENERGY CORPORATION





/s/ Paul V. Richard
Paul V. Richard Senior Vice President
Chief Human Resources Officer




Note: The Grantee is deemed to have executed this Agreement upon clicking “Accept” in the Plan’s online administration site.


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EXHIBIT A

RESTRICTIVE COVENANT AGREEMENT

THIS RESTRICTIVE COVENANT AGREEMENT (the “RCA”) dated July 1, 2019,
is by and between PEABODY ENERGY CORPORATION, a Delaware corporation (the “Company”), and (“Grantee”).

WHEREAS, the Grantee is a recipient of a 2019 Restricted Stock Unit Grant (“Award”) under the Company’s Peabody Energy Corporation 2017 Incentive Plan, as amended from time to time (the “Plan,” and such award, the “Award”);

WHEREAS, Grantee acknowledges and agrees that he or she has access to and/or knowledge of certain trade secrets and other Confidential Information regarding the Company;

WHEREAS, the Company has spent and will continue to expend substantial amounts of time, money, and effort to develop its Confidential Information and Grantee acknowledges benefitting from these efforts;

WHEREAS, the Company deems it essential to the protection of its Confidential Information and competitive standing in its market to have recipients of Awards subject to reasonable restrictive covenants;

WHEREAS, Grantee agrees and acknowledges that the Company has a legitimate interest to protect its confidential information and competitive standing; and

NOW THEREFORE, in consideration for the provisions stated below, and intending to be legally bonded thereby, the parties agree as follows.

1.Grantee has been informed and is aware that the execution of this RCA is a necessary term and condition of the Grantee’s receipt of the Award.

2.The term “Confidential Information” as used in this RCA shall be broadly interpreted to include, without limitation, materials and information (whether in written, electronic or other form and whether or not identified as confidential at the time of disclosure) concerning technical matters, business matters, business plans, operations, opportunities, plans, processes, procedures, standards, strategies, policies, programs, software, schematics, models, systems, results, studies, analyses, compilations, forecasts, data, figures, projections, estimates, components, records, methods, criteria, designs, quality control, research, samples, work-in- progress, prototypes, data, materials, clients and prospective clients, customer lists, contracts, projects, suppliers, referral sources, sales, marketing, bidding, purchasing, personnel, financial condition, assets, inventory, accounts payable, accounts receivable, tax matters, books of account, financing, collections, intellectual property, trade secrets and all other know-how and information of the Company or any subsidiary of the Company which has not been published or disclosed to the general public.

a.    While employed by the Company and at all times thereafter, Grantee will keep Confidential Information, including trade secrets, confidential and shall not, directly


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or indirectly, use for himself or herself or use for, or disclose to, any party other than the Company, or any subsidiary of the Company (other than in the ordinary course of Grantee’s duties for the benefit of the Company or any subsidiary of the Company), any Confidential Information.

b.    At the termination of Grantee’s employment or at any other reasonable time the Company or any of its subsidiaries may request, Grantee shall promptly deliver to the Company all memoranda, notes, records, plats, sketches, plans or other documents (including, without limitation, any “soft” copies or computerized or electronic versions thereof) containing Confidential Information, including trade secrets or any other information concerning Company’s business, including all copies, then in Grantee’s possession or under Grantee’s control whether prepared by Grantee or others.

c.    Notwithstanding the foregoing paragraphs, Company employees, contractors, and consultants may disclose trade secrets in confidence, either directly or indirectly, to a Federal, State or local government official or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law, or in a complaint or other document filed in a lawsuit or other proceeding if such filing is made under seal. Additionally, Company employees, contractors, and consultants who file retaliation suits for reporting a suspected violation of law may disclose related trade secrets to their attorney and use them in related court proceedings, as long as the individual files documents containing the trade secret under seal and does not otherwise disclose the trade secret except pursuant to Court Order.

3.In consideration of the Company’s obligations under the Restricted Stock Unit Agreement (the “Agreement”), Grantee agrees that while employed by the Company and for a period of twelve (12) months thereafter, without the prior written consent of the Board of Directors of the Company (the “Board”), he or she shall not, directly or indirectly, as principal, manager, agent, consultant, officer, director, stockholder, partner, investor, lender or employee or in any other capacity, carry on, be engaged in or have any financial interest in, any entity which is in competition with the business of the Company or its subsidiaries.

4.In consideration of the Company’s obligations under the Agreement, Grantee agrees that while employed by the Company and for a period of twelve (12) months thereafter, without the prior written consent of the Board, he or she shall not, on his or her own behalf or on behalf of any person, firm or company, directly or indirectly, (a) solicit or offer employment to or hire any person who is or has been employed by the Company or its subsidiaries at any time during the twelve (12) months immediately preceding such solicitation or (b) solicit or entice away or in any manner attempt to persuade any client, vendor, partner, customer or prospective customer of the Company to discontinue or diminish his, her or its relationship or prospective relationship with the Company or to otherwise provide his, her or its business to any corporation, partnership or other business entity which engages in any line of business in which the Company is engaged (other than the Company).

5.For purposes of this RCA, an entity shall be deemed to be in competition with the Company if it enters into or engages in any business or activity that substantially and directly competes with the business of the Company. For purposes of this paragraph 5, the business of the Company is defined to be: active metallurgical and thermal coal mining, preparation and sale; the

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marketing, brokering and trading of metallurgical and thermal coal; and the optimization of our metallurgical and thermal coal reserves; in each case by the Company and its direct and indirect subsidiaries or affiliated or related companies. Notwithstanding this paragraph 5 or paragraph 8, nothing herein shall be construed so as to preclude Grantee from investing in any publicly or privately held company, provided that no such investment in the equity securities of an entity with publicly traded equity securities may exceed one percent (1%) of the equity of such entity, and no such investment in any other entity may exceed five percent (5%) of the equity of such entity, without the prior written approval of the Board.

6.Grantee agrees that he or she will not at any time make, directly or indirectly, any negative, derogatory, disparaging or defamatory comment, whether written, oral or in electronic format, to any reporter, author, producer or similar person or entity or to any general public media in any form (including, without limitation, books, articles or writings of any other kind, as well as film, videotape, audio tape, computer/Internet format or any other medium) that concerns directly or indirectly the Company its business or operations, or any of its current or former agents, employees, officers, directors, customers or clients. Grantee understands that nothing in this section or this RCA limits Grantee’s ability to communicate with any government agencies or otherwise participate or cooperate with an investigation conducted by the Equal Employment Opportunity Commission, the Securities and Exchange Commission, or other similar agency, including providing documents or other information, without notice to the Company.

7.Upon the termination of Grantee’s employment for any reason, Grantee or his or her estate shall surrender to the Company all correspondence, letters, files, contracts, mailing lists, customer lists, advertising materials, ledgers, supplies, equipment, checks, and all other materials and records of any kind that are the property of the Company or any of its subsidiaries or affiliates, that may be in Grantee’s possession or under his control, including, without limitation, any “soft” copies or computerized or electronic versions thereof.

8.Grantee agrees that the covenant not to compete, the covenants not to solicit and the covenant not to make disparaging comments are reasonable under the circumstances and will not interfere with his or her ability to earn a living or otherwise to meet his or her financial obligations. Grantee and the Company agree that if in the opinion of any court of competent jurisdiction such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of this covenant which appear unreasonable and to enforce the remainder of the covenant as so amended. Grantee agrees that any breach of the covenants contained in this RCA would irreparably injure the Company. Accordingly, Grantee agrees that, in the event that a court enjoins Grantee from any activity prohibited by this RCA, the Company may, in addition to pursuing any other remedies it may have in law or in equity, cease making any payments otherwise required under the agreements evidencing the Award, cancel and recoup any portion of the Award already paid to the extent required by law, regulation or listing requirement, or by any Company policy adopted pursuant thereto, and obtain and injunction against Grantee from any court having jurisdiction over the matter restraining any further violation of this RCA by Grantee.

9.No waiver or modification of all or any part of this RCA will be effective unless set forth in a written document signed by both the Company and Grantee expressly indicating their intention to waive or modify the specified provisions of this RCA. If the Company chooses not to enforce its rights in the event Grantee or any other recipient of an Award breaches some or all of


13


the terms of this RCA, the Company’s rights with respect to any such breach shall not be considered a waiver of a future breach by Grantee of this RCA, regardless of whether the breach is of a similar nature or not.

10.This RCA accurately sets forth and entirely sets forth the understandings reached between Grantee and the Company with respect to the matters treated herein. If there are any prior written or oral understandings or agreements pertaining to the subject matter addressed in this RCA, they are specifically superseded by this RCA and have no effect, except, should the Grantee be subject to non-compete and non-solicitation obligations (“Restrictive Covenants”) pursuant to an employment agreement or other agreement between the Grantee and Company or one of its subsidiaries or affiliates, Grantee shall continue to be bound by the terms of those Restrictive Covenants and they shall run concurrently with those set forth in this RCA. This RCA is binding on Grantee and the Company, and our respective successors, assigns and representatives.

11.Because of Company’s and Grantee’s substantial contacts with the State of Missouri, the fact that Company’s headquarters is located in Missouri, the parties’ interests in ensuring that disputes regarding the interpretation, validity, and enforceability of this RCA are resolved on a uniform basis, and Company’s making and execution of this Agreement in Missouri, the parties agree that the RCA shall be interpreted and governed by the laws of the State of Missouri, without regard for any conflict of law principles. The parties agree that the exclusive venue and jurisdiction for any litigation concerning or arising out of or based on this RCA shall be the federal and state courts located in Missouri. The parties expressly consent to the personal jurisdiction and venue of said courts. The provisions of this paragraph shall not restrict the ability of Company or Grantee to enforce in any court any judgment obtained in Missouri federal or state court.

[SIGNATURE PAGE FOLLOWS]


14


IN WITNESS WHEREOF, this R C A has been executed and delivered by the parties hereto.


PEABODY ENERGY CORPORATION





/s/ Paul V. Richard
Paul V. Richard Senior Vice President
Chief Human Resources Officer




Note: The Grantee is deemed to have executed this Agreement upon clicking “Accept” in the Plan’s online administration site.

15


Exhibit 31.1
CERTIFICATION
I, Glenn L. Kellow, certify that:

1.
I have reviewed this quarterly report on Form 10-Q of Peabody Energy Corporation (“the registrant”);

2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.
The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)
designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)
designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)
evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)
disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.
The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a)
all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b)
any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: November 5, 2019
 
/s/ Glenn L. Kellow
 
 
Glenn L. Kellow
 
 
President and Chief Executive Officer 
 





Exhibit 31.2
CERTIFICATION
I, Amy B. Schwetz, certify that:

1.
I have reviewed this quarterly report on Form 10-Q of Peabody Energy Corporation (“the registrant”);

2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.
The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)
designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)
designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)
evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)
disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.
The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a)
all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b)
any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: November 5, 2019
 
/s/ Amy B. Schwetz  
 
 
Amy B. Schwetz
 
 
Executive Vice President and Chief Financial Officer 
 





Exhibit 32.1
CERTIFICATION PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
(18 U.S.C. SECTION 1350)
I, Glenn L. Kellow, President and Chief Executive Officer of Peabody Energy Corporation, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1)
the Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2019 (the “Periodic Report”) which this statement accompanies fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
(2)
information contained in the Periodic Report fairly presents, in all material respects, the financial condition and results of operations of Peabody Energy Corporation.

Dated: November 5, 2019
 
/s/ Glenn L. Kellow 
 
 
Glenn L. Kellow
 
 
President and Chief Executive Officer 
 





Exhibit 32.2
CERTIFICATION PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
(18 U.S.C. SECTION 1350)
I, Amy B. Schwetz, Executive Vice President and Chief Financial Officer of Peabody Energy Corporation, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1)
the Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2019 (the “Periodic Report”) which this statement accompanies fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
(2)
information contained in the Periodic Report fairly presents, in all material respects, the financial condition and results of operations of Peabody Energy Corporation.

Dated: November 5, 2019
 
/s/ Amy B. Schwetz  
 
 
Amy B. Schwetz
 
 
Executive Vice President and Chief Financial Officer 
 





Exhibit 95
Mine Safety Disclosures
The following disclosures are provided pursuant to Securities and Exchange Commission (SEC) regulations, which require certain disclosures by companies required to file periodic reports under the Securities Exchange Act of 1934, as amended, that operate coal mines regulated under the Federal Mine Safety and Health Act of 1977 (the Mine Act). The disclosures reflect United States (U.S.) mining operations only, as these requirements do not apply to our mines operated outside the U.S. 
Mine Safety Information. Whenever the Mine Safety and Health Administration (MSHA) believes that a violation of the Mine Act, any health or safety standard, or any regulation has occurred, it may issue a violation which describes the associated condition or practice and designates a timeframe within which the operator must abate the violation. In some situations, such as when MSHA believes that conditions pose a hazard to miners, MSHA may issue an order removing miners from the area of the mine affected by the condition until hazards are corrected. Whenever MSHA issues a citation or order, it generally proposes a civil penalty, or fine, as a result of the violation that the operator is ordered to pay. Citations and orders can be contested and appealed and, as part of that process, are often reduced in severity and amount, and are sometimes vacated. The number of citations, orders and proposed assessments vary depending on the size and type (underground or surface) of the company and mine. Since MSHA is a branch of the U.S. Department of Labor, its jurisdiction applies only to our U.S. mines. As such, the mine safety disclosures that follow contain no information for our Australian mines.
The tables that follow reflect citations and orders issued to us by MSHA during the three and nine months ended September 30, 2019, as reflected in our systems. The tables include only those mines that were issued orders or citations during the periods presented and, commensurate with SEC regulations, do not reflect orders or citations issued to independent contractors working at our mines. Due to timing and other factors, our data may not agree with the mine data retrieval system maintained by MSHA. The proposed assessments for the three and nine months ended September 30, 2019 were taken from the MSHA system as of November 1, 2019.
Additional information about MSHA references used in the tables is as follows:
Section 104 S&S Violations: The total number of violations received from MSHA under section 104(a) of the Mine Act that could significantly and substantially contribute to a serious injury if left unabated.
Section 104(b) Orders: The total number of orders issued by MSHA under section 104(b) of the Mine Act, which represents a failure to abate a citation under section 104(a) within the period of time prescribed by MSHA. This results in an order of immediate withdrawal from the area of the mine affected by the condition until MSHA determines that the violation has been abated.
Section 104(d) Citations and Orders: The total number of citations and orders issued by MSHA under section 104(d) of the Mine Act for unwarrantable failure to comply with mandatory health or safety standards.
Section 104(e) Notices: The total number of notices issued by MSHA under section 104(e) of the Mine Act for a pattern of violations that could contribute to mine health or safety hazards.
Section 110(b)(2) Violations: The total number of flagrant violations issued by MSHA under section 110(b)(2) of the Mine Act.
Section 107(a) Orders: The total number of orders issued by MSHA under section 107(a) of the Mine Act for situations in which MSHA determined an imminent danger existed.
Proposed MSHA Assessments: The total dollar value of proposed assessments from MSHA.
Fatalities: The total number of mining-related fatalities.





Three Months Ended September 30, 2019
 
 
Section
104 S&S
Violations
 
Section
104(b)
Orders
 
Section
104(d)
Citations and
Orders
 
Section
104(e) Pattern
of Violations
 
Section
110(b)(2)
Violations
 
Section
107(a)
Orders
 
($)
Proposed
MSHA
Assessments
 
 
Mine (1)
 
 
 
 
 
 
 
 
Fatalities
 
 
 
 
 
 
 
 
 
 
 
 
 
 
(In thousands)
 
 
Seaborne Metallurgical Mining
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Shoal Creek Mine
 
27

 
2

 
2

 

 

 

 
54.4

 

Powder River Basin Mining
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Rawhide
 
3

 

 

 

 

 

 
3.6

 

Midwestern U.S. Mining
 
 
 
 

 
 

 
 

 
 

 
 

 
 
 
 

Bear Run
 

 

 

 

 

 

 
0.5

 

Francisco Preparation Plant (Francisco Mine)
 
1

 

 

 

 

 

 
0.8

 

Francisco Underground
 
11

 

 

 

 

 

 
24.0

 

Gateway North
 
11

 

 

 

 

 

 
30.3

 

Wildcat Hills Underground
 
15

 

 

 

 

 

 
28.0

 

Western U.S. Mining
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Twentymile (Foidel Creek Mine)
 
1

 

 

 

 

 

 
5.9

 

(1) 
The definition of "mine" under section 3 of the Mine Act includes the mine, as well as other items used in, or to be used in, or resulting from, the work of extracting coal, such as land, structures, facilities, equipment, machines, tools and coal preparation facilities. Also, there are instances where the mine name per the MSHA system differs from the mine name utilized by us. Where applicable, we have parenthetically listed the name of the mine per the MSHA system. Also, all U.S. mines are listed alphabetically within each of our mining segments.

Nine Months Ended September 30, 2019
 
 
Section
104 S&S
Violations
 
Section
104(b)
Orders
 
Section
104(d)
Citations and
Orders
 
Section
104(e) Pattern
of Violations
 
Section
110(b)(2)
Violations
 
Section
107(a)
Orders
 
($)
Proposed
MSHA
Assessments
 
 
Mine (1)
 
 
 
 
 
 
 
 
Fatalities
 
 
 
 
 
 
 
 
 
 
 
 
 
 
(In thousands)
 
 
Seaborne Metallurgical Mining
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Shoal Creek Mine
 
82

 
2

 
5

 

 

 

 
215.8

 

Powder River Basin Mining
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Caballo
 
1

 

 

 

 

 

 
3.9

 

North Antelope Rochelle
 
2

 

 

 

 

 

 
10.9

 

Rawhide
 
4

 

 

 

 

 

 
6.0

 

Midwestern U.S. Mining
 
 
 
 

 
 

 
 

 
 

 
 

 
 
 
 

Bear Run
 
6

 

 

 

 

 

 
26.3

 

Francisco Preparation Plant (Francisco Mine)
 
1

 

 

 

 

 

 
0.9

 

Francisco Underground
 
34

 

 

 

 

 

 
84.1

 

Gateway North
 
18

 

 

 

 

 

 
56.8

 

Gateway Preparation Plant
 

 

 

 

 

 

 
0.1

 

Somerville Central
 
3

 

 

 

 

 

 
3.0

 

Wild Boar
 
1

 

 

 

 

 

 
1.2

 

Wildcat Hills Cottage Grove Pit
 
3

 

 

 

 

 

 
4.9

 

Wildcat Hills Underground
 
31

 

 

 

 

 

 
69.5

 

Western U.S. Mining
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
El Segundo
 
4

 

 

 

 

 

 
5.2

 

Kayenta
 
1

 

 

 

 

 

 
2.2

 

Twentymile (Foidel Creek Mine)
 
10

 

 

 

 

 

 
45.4

 

(1) 
The definition of "mine" under section 3 of the Mine Act includes the mine, as well as other items used in, or to be used in, or resulting from, the work of extracting coal, such as land, structures, facilities, equipment, machines, tools and coal preparation facilities. Also, there are instances where the mine name per the MSHA system differs from the mine name utilized by us. Where applicable, we have parenthetically listed the name of the mine per the MSHA system. Also, all U.S. mines are listed alphabetically within each of our mining segments.





Pending Legal Actions. The Federal Mine Safety and Health Review Commission (the Commission) is an independent adjudicative agency that provides administrative trial and appellate review of legal disputes arising under the Mine Act. These cases may involve, among other questions, challenges by operators to citations, orders and penalties they have received from MSHA, or complaints of discrimination by miners under section 105 of the Mine Act. The following is a brief description of the types of legal actions that may be brought before the Commission.
Contests of Citations and Orders: A contest proceeding may be filed with the Commission by operators, miners or miners’ representatives to challenge the issuance of a citation or order issued by MSHA, including citations related to disputed provisions of operators' emergency response plans.
Contests of Proposed Penalties (Petitions for Assessment of Penalties): A contest of a proposed penalty is an administrative proceeding before the Commission challenging a civil penalty that MSHA has proposed for the violation. Such proceedings may also involve appeals of judges' decisions or orders to the Commission on proposed penalties, including petitions for discretionary review and review by the Commission on its own motion.
Complaints for Compensation: A complaint for compensation may be filed with the Commission by miners entitled to compensation when a mine is closed by certain withdrawal orders issued by MSHA. The purpose of the proceeding is to determine the amount of compensation, if any, due miners idled by the orders.
Complaints of Discharge, Discrimination or Interference: A discrimination proceeding is a case that involves a miner’s allegation that he or she has suffered a wrong by the operator because he or she engaged in some type of activity protected under the Mine Act, such as making a safety complaint. This category includes temporary reinstatement proceedings, which involve cases in which a miner has filed a complaint with MSHA stating he or she has suffered discrimination and the miner has lost his or her position.
Applications for Temporary Relief: An application for temporary relief from any modification or termination of any order or from any order issued under certain subparts of section 104 of the Mine Act may be filed with the Commission at any time before such order becomes final.
The table that follows presents information by mine regarding pending legal actions before the Commission at September 30, 2019. Each legal action is assigned a docket number by the Commission and may have as its subject matter one or more citations, orders, penalties or complaints.
 
 
Pending Legal Actions
 
Legal Actions Initiated During the Three Months Ended
September 30, 2019
 
Legal Actions Resolved During the Three Months Ended
September 30, 2019
 
 
Number of Pending Legal Actions as of September 30, 2019
 
Pre-Penalty Contests of Citations/Orders
 
Contests of Penalty Assessment (2)
 
Complaints for Compensation
 
Complaints of Discharge, Discrimination or Interference
 
Applications for Temporary Relief
 
 
Mine (1)
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Seaborne Metallurgical Mining
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Shoal Creek Mine
 
3
 
 
3
 
 
 
 
 
1
Powder River Basin Mining
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
North Antelope Rochelle
 
 
 
 
 
 
 
 
1
Midwestern U.S. Mining
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Bear Run
 
2
 
 
2
 
 
 
 
 
Francisco Underground
 
7
 
 
7
 
 
 
 
1
 
2
Wildcat Hills Underground
 
 
 
 
 
 
 
1
 
4
Western U.S. Mining
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
El Segundo
 
1
 
 
1
 
 
 
 
 
Twentymile (Foidel Creek)
 
3
 
 
3
 
 
 
 
1
 
6
(1) 
The definition of "mine" under section 3 of the Mine Act includes the mine, as well as other items used in, or to be used in, or resulting from, the work of extracting coal, such as land, structures, facilities, equipment, machines, tools and coal preparation facilities. Also, there are instances where the mine name per the MSHA system differs from the mine name utilized by us. Where applicable, we have parenthetically listed the name of the mine per the MSHA system. Also, all U.S. mines are listed alphabetically within each of our mining segments.
(2) 
Contests included a total of 1 appeal of judge's decisions or orders to the Commission as of September 30, 2019.